Preface
This brief note is not legal advice and is for educational purposes only.
Quick Discussion
A litigation hold is a request that you preserve documents (which the other side considers evidence presumably of your wrong doing) that are related to a potential or on-going litigation matter. If you have received a litigation hold letter – no pun intended, follow it to the letter. If you do not follow it and destroy or allow the destruction of any material the courts frown on such “SPOLIATION”. The consequences can be extreme to the point of instructing the jury that what the other side says was in the documents is to be taken as true. In an extreme case you lose your lawsuit.
Quick Rule
Preserve everything. Destroy nothing.
Reality
Your natural reaction will be to say, for example, my buying an ice cream at a store has nothing to do with the case against me for breach of contract. The other side says you destroyed the evidence and it’s SPOLIATION and they want sanctions against you. You say nuts until the other side says “It’ll show he wasn’t at work when he should have been.” The court agrees and suddenly your goose is in the noose.
“Documents” has a very wide range a very short version is: “Document” means any written, recorded, or graphic material of any kind, whether prepared by you or by any other person, that is in your possession, custody, or control.
Seriously the range of documents is wider every day and attorneys are quite clever. We particularly like “evidence mail” more commonly known as email, and websites :). Preserve it.
Destroy nothing, Preserve everything, and don’t let things get destroyed
Many companies have automatic recycling or getting rid of old documents. You need to preserve these if possible. For example, your bank/brokerage, whatever may destroy old documents. Download and preserve them if necessary. If you have control at a company, stop all recycling of tapes, disk drives, cloud storage, etc. Don’t get rid of departing employees’ computers or at least pull and save the storage. Don’t overwrite drives, cloud storage, or anything else, including phone texts, phone messages, phone photos, etc. Electronic chat sessions, video meetings (think Zoom), etc. should be preserved. Seriously!
Yes, it’s a PITA but you must do it. Additionally, anyone who may have documents related to the litigation should also be aware of the litigation hold and should comply.
Conclusion
Litigation holds are a PITA. Contact your attorney IMMEDIATELY if you receive one and discuss your particular situation. In the meantime,immediately stop all actions that could result in the destruction of documents.
