The failure to execute a required litigation hold
protocol or to prevent the alteration of any ESI, including its metadata, following receipt of a subpoena or the threat of litigation may result in charges of spoliation of evidence.
If it has not already done so, I also recommend that your client explore the use of technology to automate its litigation hold
procedures and put in place such features as anti-deletion tools that can lock down an employees data and prevent it from being altered or deleted after a hold is in place.
"You don't want to have a litigation hold
in place and you're getting rid of documents," Miller said, adding that he has no knowledge of whether Spangenberg's allegations are true.
This duty to preserve documents and information with a litigation hold
extends to emails and other electronic data, including text messages, in addition to hard copies of documents.
From a defendant's perspective, the obligation to implement a litigation hold
is often triggered by a notice-of-claim letter or formal service of process.
(97) Aggravating matters, the Authority admitted that, even after the litigation began, it knew about but did not use software available for programming overrides to stop automatic disposal of emails in accordance with a litigation hold
. (98) The Authority had backup tapes that contained archived copies of the destroyed emails, and the Disability Rights Council moved to compel the Authority to organize the data on those backup tapes so the data could be searched by keyword for emails related to, and discoverable in, the litigation.
The District Court Held That Takeda's 2002 Litigation Hold
Created a Duty to the Allen Plaintiffs to Preserve All ESI Relevant to Any Potential Actos Claim.
"We have potential court consequences if we fail to obey a litigation hold
," Park said.
Companies should also work with retained or in house counsel to ensure that there is a process in place for timely implementing the litigation hold
notice and necessary follow-ups, and instituting efficient and cost-effective protocols for hard copy and Electronically-Stored Information ("ESI") collection and storage.
He addresses the relevant privileges and protections and the implications of technology for these principles, including privilege as it relates to the reasonable expectation of privacy and related ethical issues, waiver, privilege logs, privilege review, the Federal Rules of Civil Procedure, the crime-fraud exception, experts, litigation hold
notices, and litigation support databases.
If litigation is reasonably anticipated, a "litigation hold
" should be placed on all related documents, both internal and external, whether helpful or not.
The company's AD eDiscovery platform is an automated, in- house solution that addresses the e-discovery lifecycle from litigation hold
to the generation of load files for common third-party review tools.