Our recent post on the ramifications of destroying social media content got us thinking about the importance of an effective legal hold letter. Also known as a “preservation” or “hold” order, this document instructs an entity or individual to preserve all data that may reasonably relate to pending or anticipated litigation. A goal of the litigation hold is to suspend the normal dispositions of records and to prevent spoliation. Another goal is to avoid the potential for sanctions and ethical issues facing those who destroy relevant content. Given the importance of a legal hold, and the serious ramifications for failing to comply, all professionals must be aware of the contents of a proper legal hold.
From the moment that litigation is reasonably anticipated, a potential litigant must preserve all relevant materials including electronically stored data and social media content. An adversary or attorney may issue a litigation hold letter or the hold may be ordered internally. Adequate litigation holds must be timely (err on the side of too early, as opposed to too late). Moreover, the hold must be communicated to those responsible with maintaining the relevant data as well as those with direct information. A litigation hold letter is more effective if it preserves too much data, as opposed to a less inclusive hold.
Litigation holds may be difficult to implement so professionals must be prepared. All companies must establish sound document retention policies that allow for the inception of a litigation hold at a moment’s notice. Effective data retention systems with a built-in litigation hold feature can immediately override the routine deletion rules, preventing the destruction of data and potential exposure to discipline in the event of inadvertent spoliation.