Implementing a Litigation Hold

by Nicholas J. Panarella, Kelley Drye & Warren LLP, with Practical Law Litigation

A Practice Note discussing the critical process of implementing a litigation hold, also known as a document hold or legal hold. This Note addresses when the duty to preserve evidence attaches, focusing on the concept of "reasonable anticipation of litigation" and the various events that can trigger this obligation. It provides an overview of how to set up, communicate, and supervise a hold to prevent the spoliation of relevant records, including electronically stored information (ESI). This Note also explores the necessary components of a litigation hold notice and the practical steps for managing the process, from assembling a team to modifying and eventually lifting the hold. It underscores the serious repercussions for failing to take reasonable steps to preserve information, including the risk of significant sanctions under FRCP 37(e), adverse jury instructions, and other severe legal consequences.