Many business owners learn early on that disputes are inevitable and can sometimes lead to litigation. Once it appears that litigation is reasonably certain to occur, certain steps should immediately be taken to preserve information relevant or potentially relevant to the dispute. This is typically accomplished by sending a written litigation hold notice to key individuals within an organization advising that certain documents and electronically stored information must be preserved. Such hold notices help to ensure that relevant information does not slip through the cracks or get inadvertently deleted.
What a Hold Notice Should Include
The hold notice should be short and simple. You do not want the recipient to be confused as to what exactly is being asked of them. That said, every hold notice should contain at least the following information:
- Introduction: Explain why you are sending the litigation hold so that the recipients understand the importance of the request and are better able to identify relevant information.
- Materials to be Preserved: The hold notice should include specifics such as the nature of the dispute, the relevant time period and a description of the necessary information. It should also clearly identify what types of materials must be preserved, including, but not limited to, paper files, emails, or text messages.
- Retention Instructions: The notice should be delivered to key employees who have knowledge of the issues in the dispute, and also to relevant personnel who can suspend normal retention procedures.
- Compliance: Advise that preservation is mandatory, and that failure to comply may reduce the company’s ability to pursue its claims or prepare its defense.
- Confidentiality: If the request is within your own organization, emphasize the confidential nature of the dispute and the expectation that employees will not discuss it with each other or outside the company. The goal is to decrease discoverable communications by employees who may inadvertently make statements that may be detrimental to the company.
- Duration of the Litigation Hold: The notice should state that individuals are required to preserve all relevant information until they are notified that the hold has been released.
- Contact Information: The notice should provide the name and contact information for the person designated to answer questions about the litigation hold.
- Receipt and Acknowledgment: Require recipients to send a written response confirming that they have read the notice and will comply with its requirements.
In sum, a hold notice should include at least the above information and should be drafted in a clear and comprehensive manner. It will serve as the means for proper compliance with document preservation requirements. If the hold notice is not timely sent or not appropriately followed, the company may be unable to prosecute its claims, prepare a sufficient defense, and even be subject to discovery sanctions for failing to preserve relevant evidence. Therefore, it is advisable to speak with an attorney to ensure compliance.