10 Tips for Litigation Hold Plans

A "litigation hold plan" guides an organization in carrying out its evidence preservation obligations. Many factors come into play when the need to preserve records is triggered, and each organization has unique systems, policies, and practices. There is no one-size-fits-all plan, but there are important considerations that should be addressed.

In our first post in this series, we discussed events that can trigger a litigation hold and policies to have in place before you are faced with a legal hold. In this post, we provide more details on how to use your litigation hold policy to implement a litigation hold plan when you are hit with a hold.

1. Identification of Key Players, Departments, and Data Sources (All vs. Targeted)

   The plan should address the need to consider the scope of the preservation. In some cases it may be necessary to implement a company-wide preservation, while in other cases it makes more sense to target only key individuals or departments. While this decision will likely be driven by the scope of the lawsuit at issue, that is not the only factor. For example, making sure the scope is no broader than necessary will help maintain the attorney-client privilege and work product protection with respect to the hold notice and related documents.

   Our second post in this series provides further details on how to inform key employees on how to preserve documents.

2. Interviewing Key Individuals

   The plan should emphasize the benefits of identifying key individuals and arranging personal meetings with them. Face-to-face meetings with individuals likely to possess the most sensitive or largest amounts of information can be tremendously beneficial in terms of learning what the company knows and where relevant records are likely to be found. Not every potential custodian needs to be personally interviewed; those who play a less significant role can usually describe their knowledge and preservation practices via a questionnaire or survey.

3. Prioritization of Tasks

   It may be useful to prioritize the tasks that ought to be accomplished first and foremost. For example, email is typically the most important source for preservation. One should not wait to preserve email of key employees while determining what other sources of information should also be preserved. A delay could result in the inadvertent loss of emails or other data.

   Creating a data map can help you identify and prioritize preserving information. Our third sample...