10 Essentials For A Well-Drafted Litigation Hold Notice

This post is the second in a our Legal Hold Practical Advice Series.

You just learned that your company was (or probably will be) sued. How should you go about informing key employees to preserve evidence?

The first step is to issue a litigation hold notice to key individuals at the company who may have information relevant or potentially relevant to the lawsuit (or threatened lawsuit). The goal of the notice is to ensure the preservation of all information in the company's possession or control related to the claims or defenses in the lawsuit. Failure to issue the notice and implement the litigation hold could result in the inadvertent destruction of relevant evidence. No litigant wants to lose the ability to introduce evidence that would have been helpful in the lawsuit. Moreover, destruction of relevant evidence, regardless of whether it is helpful, could lead to judicial sanctions or a judgment against the company.

The litigation hold notice begins a process by which the company formally notifies key employees that they must preserve relevant information. A well-drafted notice need not be lengthy or filled with legal-ese, but it should contain at least the following information:

Introduction - Why Necessary: Explain why you are instituting a litigation hold so that the recipients appreciate the importance of their preservation efforts. Explaining the general purpose of the hold may also help the recipients to identify relevant information. The explanation need not describe the lawsuit or subpoena in detail. A general description will usually suffice for purposes of the notice. The Company was recently sued by XYZ Corporation for breach of contract involving the sale of widgets. We are in the process of identifying all paper and electronic documents that may be relevant to the matter . . . You have been identified as a person who has had involvement with the XYZ contract, or may possess relevant documents or communications. We request your attention and assistance in preserving this relevant information for our attorney's use in the litigation matter as appropriate. What is to be Preserved: The legal hold notice becomes a checklist for what kind of records should be preserved, including a time period and description of the relevant categories of information. As part of this process, you must preserve all documents or communications that may be relevant for the time period of [date range]. This notice applies to all paper and electronic...