Be Ready for Legal Holds

Posted by Gregg Mayer on Monday, February 18th, 2008   

What’s a legal hold? A legal hold is a communication throughout your company that all information that may be relevant to litigation must be preserved, including the outpourings and influx of hundreds of email messages. A legal hold is triggered when your company reasonably anticipates litigation.

No universal answer exists for when litigation is “reasonably anticipated.” It is a highly fact-intensive analysis. Generally, reasonable anticipation of litigation “arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation,” according to The Sedona Conference Commentary On Legal Holds: The Trigger & The Process. The Sedona Conference is a popular and well-regarded think tank made up of judges, lawyers and academics who discuss issues of complex litigation.

Once triggered, a legal hold must be implemented efficiently. Failing to properly preserve ESI after litigation is reasonably anticipated may result in sanctions from a court, including an adverse jury instruction that whatever the company destroyed should be considered in the worst possible light against the company.

As explained by the Sedona Conference:

Once the duty to preserve information arises, an organization must decide what to preserve and how to accomplish that preservation. In some circumstances, the duty to preserve requires only that a limited number of known historical documents be located and preserved. In other circumstances, the scope of the information is larger and the sources of the information may not be known to counsel.

Knowing about legal holds, and having the capability to implement them quickly and seamlessly, is critical to being ready when your company faces legal trouble.

To read the complete Sedona report on legal holds: The Sedona Conference Commentary On Legal Holds: The Trigger & The Process.

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