Ingredients of a Sound Legal Hold

By on December 1, 2015

Scott Wandstrat, Arnall Golden Gregory LLP

Among in-house counsel there is much angst around e-discovery, and for good reasons: mounting costs, rampant techno-babble and a pronounced uptick in the volume of filings asking for discovery sanctions, and orders granting those requests. The most common ground for those filings is failure to take reasonable steps to preserve potentially relevant information.

The best protection against this threat is to institute a legal hold, starting with the prompt distribution of a legal hold memo to each information custodian, explaining the who, what, when, why and how of preservation. The memo should educate custodians about their obligation and how it impacts decisions about disposing of information.

Employees are just one possible group of custodians. There may be third parties such as lawyers and accountants, among others, who need to receive the notice.

Once the initial legal hold is sent out, remember the work is not done. As more about the dispute is discovered or the focus of litigation shifts, the hold will likely need to be revised. Explain in plain English what the dispute is about and what categories of information need to be preserved. The goal is to arm the recipients with the information they need to determine whether any particular piece of information is subject to the hold.

Even when things don’t change, the best practice is to remind custodians about preservation obligations periodically throughout the litigation or investigation, and that the duty to preserve is ongoing.

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