Litigation Holds and Lessons Learned

Bow Tie Law’s Blog recently had an interesting piece on litigation holds titled “The Holding Pattern: Lessons Learned on Litigation Holds” where insufficient notices or notices crated in bad faith can jeopardize a case because of the possibility of spoliation of ESI.

I have run across this same problem with past customers that didn’t take the litigation hold responsibility seriously. I worked with a customer whose litigation hold process was to send an email out to all 40,000 employees in 60 different countries telling them to stop deleting emails with specific content.

There was no consideration given to employees in other countries being able to read and understand English nor any follow up to make sure they had understood and acknowledge their responsibility. The GC’s opinion was: “I’ve let the employees know; now it’s their problem”. Obviously that doesn’t fly now.

So what is an easier, less risky way of applying litigation holds? The most straight forward way is to do it centrally and not rely on employees to understand and do it properly. A centrally managed ESI archive gives the legal department the ability to find the potentially responsive ESI and apply a litigation hold within minutes. This will also greatly reduce your risk of spoliation.

This also means all responsive ESI is available to be searched and placed on litigation hold. So you don’t have to hope employees understand and react properly to your litigation hold request…you simply do it centrally.

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