A litigation hold letter is a notice requiring an individual or company to preserve each piece of information relevant to a pending lawsuit. These letters are not issued by the court but rather by an opposing party in a legal action. They prohibit a party from destroying possible evidence — and suspend the standard retention policies of a company to ensure the data is available for review during the discovery phase of business litigation. Our New York business litigation attorneys will advise you of your responsibilities if you have been sent a litigation hold letter.
What are the Elements of a Litigation Hold Letter?
Although there is no legal requirement about what a litigation hold letter must contain, the notice must clearly specify the information that must be preserved. Critically, the letter must order the recipient to separate and keep data that may relate to an investigation or pending litigation. This collection can include anything from reports, spreadsheets, emails, photos, videos, text messages, correspondence, electronically stored information, and physical devices such as cell phones or computers.
A well-drafted litigation holder includes the following:
- Why the letter is necessary
- What is to be preserved
- Instructions for retention of the data
- The scope of what is to be preserved
- Mandatory preservation
- Duration of the litigation hold
- Receipt and acknowledgment
The letter should also emphasize that preservation of the evidence is mandatory — and communicate that failure to retain it can lead to legal penalties and result in the company’s inability to defend itself.
What Should You Do if You Receive a Litigation Hold Letter?
If you receive a litigation hold letter, you should not ignore it — you should speak with your attorney about responding. If the company has a document retention policy, review it to confirm that it has been suspended in a way appropriate to the pending lawsuit. Even if the company has no litigation-hold policies in place, confirm with the personnel that the steps for preservation as outlined in the letter have been carefully implemented.
You should know the company’s procedures for any employees who leave or are terminated after the litigation hold procedures have been started. It’s important to ensure all electronically stored information that may relate to the case is preserved even if a key person no longer works with the company.
Be sure not to throw away anything that might serve as relevant evidence. Even if a hard drive, computer, phone, or other device were to break, keep it until your attorney confirms it is not needed. Destroying, deleting, or erasing any data that could have been used as evidence can expose you to legal liabilities and penalties. If you’re in doubt about what documents should be kept, speak with your attorney.
The penalties for spoliation or destroying evidence after receiving a litigation hold letter can be severe. A court can prohibit you from presenting specific evidence that may help your position or exclude you from participating in decision-making processes. A judge might even issue an order that requires you to pay to recreate the evidence destroyed. Safeguard your company from potential risks by remaining organized throughout the litigation process and keeping all relevant information in a secure location.
Contact an Experienced New York Business Litigation Attorney
Litigation hold letters are vital to preserving evidence that can be used in a lawsuit. Whether you’ve received such a letter or must send one, it’s essential to have a skilled attorney by your side who can guide you through every phase of litigation. Brinen & Associates is committed to providing knowledgeable representation to entrepreneurs and corporate owners for a wide variety of business law matters. Call (212) 330-8151 or send us a message to learn how our New York Business Law attorneys can help.