What Is a Litigation Hold? Plus What to Do

  • Tom Wood
  • August 27, 2021

Without a doubt, one of the hardest things about preparing for court is managing and preserving information. Legal teams need to take direct action to preserve evidence. And this is no easy task, especially when working with a large team in a fast-moving environment.  

 

To streamline the process and prevent clients from accidentally or knowingly destroying evidence, it’s necessary to place a legal hold. In brief, a litigation hold—or legal hold—is a powerful strategy and something that every legal professional should know how to wield. 

 

Keep reading to learn about how litigation holds work, why teams use them, and how to deploy one. 

 

What Is a Litigation Hold? 

In brief, a litigation hold is a notification from a legal team to a party informing them not to delete information.  

 

A litigation hold isn’t an order. When it originates from an attorney, it’s merely a request. However, this is not something that a party should overlook. The point of a legal hold is to preserve information for potential use as evidence during a legal case.  

 

A litigation hold can apply to both tangible and digital evidence. For example, you may inform employees to stop shredding paper documents for potential use in court. You might also instruct workers to stop deleting electronically stored information (ESI).  

 

Under Rule 34 of the Federal Rules of Civil Procedure (FRCP), electronically stored information may include writings, drawings, graphs, images, videos, charts, data, or sound recordings. Therefore, a legal team may put a litigation hold on any number of these items to prepare for their day in court.  

 

This commonly occurs with emails. For example, you may need to produce a complete set of emails between two parties during a specific window of time. By placing a litigation hold, you can prevent employees from interfering with this information and potentially deleting messages.  

What Triggers a Litigation Hold?

Legal teams typically issue a litigation hold when they anticipate that a court battle is imminent. Generally speaking, it’s best to take precautionary measures and issue a litigation hold as soon as you catch wind that a lawsuit may occur. By taking action early, you can prevent the loss of evidence and increase the chances that your day in court is smoother. 

 

Of course, you don’t always have time to prepare for a case. It may be necessary to place a litigation hold after receiving notification of a lawsuit. 

 

It’s important to realize that an internal hold should take place prior to a meet-and-confer session with another party. You certainly want to enter a meet-and-confer session confident in your ability to produce any information that the other party requests.  

 

Litigation Holds and eDiscovery 

When it boils down to it, litigation holds are an important part of the eDiscovery process.  

 

Not familiar with eDiscovery? Here’s a quick primer: Before meeting in court, two opposing sides must meet and exchange evidence. The eDiscovery process entails formally requesting information from another party and seeing what they intend on using as evidence in court. 

 

The eDiscovery process is important because it enables two teams to effectively prepare for court. In other words, it prevents teams from going to court without a sound plan. At the same time, it also prevents teams from producing evidence at the last minute and blindsiding the other party.  

 

In sum, eDiscovery ensures a fast, fair, and efficient trial. It also helps discover the truth during a court case. By exchanging evidence, teams can discover information and then present the evidence in court as they make their case.  

Why Litigation Holds Are Important

In light of this, litigation holds play a key part in the eDiscovery process. They help ensure that evidence makes it to trial. 

 

Without litigation holds, employees would have no way of knowing whether to keep or destroy evidence. Oftentimes, employees don’t think twice about deleting files—it’s a routine procedure in their day-to-day work.  

 

In some cases, individuals may know full well that a case is coming and attempt to destroy evidence to avoid embarrassment or fallout. A litigation hold can help protect against this type of nefarious behavior.  

 

What Is a Document Preservation Order?

A court also holds the power to issue a litigation hold through a document preservation order. A preservation order is an official notice informing a party not to tamper with or destroy evidence prior to use in court.  

 

This often occurs when one party suspects that another party is unable to produce documents. When this happens, a party may request the court to issue a preservation order. In order for this to occur, the team must demonstrate sufficient evidence to suggest the potential destruction of relevant evidence. Further, the order must not be overly burdensome to another party to comply with. 

Duty of Preservation: An Overview

When it boils down to it, all parties have a duty to preserve information prior to a case.  

 

On the condition that a court case may ensue, it’s critical to stop the destruction of evidence. It’s necessary to protect information so that you can officially produce it and allow a court to make a decision.  

 

Failure to produce evidence in court can lead to an accusation of spoliation of evidence—a serious grievance that can lead to a variety of negative consequences. Spoliation can potentially cause a court to issue sanctions against you. In some cases, sanctions may be a simple warning. In the case of severe spoliation, the court may dismiss the case altogether.  

 

As such, legal teams and companies need to take litigation holds seriously. Strong recordkeeping and compliance are both critical for success in court. Destroying evidence willingly or unknowingly can have lasting implications and potentially lead to a loss in court or even worse. 

Responding to a Litigation Hold 

After sending a litigation hold to your client or employees, you should request a formal litigation hold letter. To clarify, a litigation hold letter demonstrates that you’re making a reasonable effort to advise your client and instruct them not to destroy evidence. Essentially, you’re just covering your bases.  

 

Upon receiving a litigation hold notice, the other party should respond in writing to acknowledge receipt. They should also outline the specific steps they are taking to preserve information for use in court. 

 

In the litigation hold letter, it’s important to request a written response. If you send a litigation hold notice and don’t provide clear instructions on what to do, the recipient may simply ignore the letter. This could potentially result in negative repercussions in court.  

 

Venio: A One-Stop Shop for eDiscovery

The legal eDiscovery process isn’t always cut and dried. It can be fast-moving and chaotic at times—especially in cases involving large amounts of data. For this reason, more and more legal teams are streamlining eDiscovery management through purpose-built platforms like VenioOne. This platform provides end-to-end eDiscovery management, making it easy to store information and respond to requests. 

 

Venio also provides a secure environment for data culling. By culling data within VenioOne, you can safely reduce the size of large datasets without fear of losing information. By taking this approach, you can always present more information upon request during court.  

 

Ready to take your first steps toward a smoother eDiscovery process? Request a demo today

 

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.