It is very important to initiate a “litigation hold” when you have reason to believe that your client might be sued. This is the first line of defense to spoliation claims. A sample litigation hold directive is provided below:
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
NOTICE – The information in this correspondence, including all attachments thereto, is considered ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL and is intended only for the use of the individual(s) named above. Any unintended recipient is hereby notified that any disclosures, reproduction, use or distribution of such information is prohibited.
Re: [Short description of lawsuit or dispute to frame scope].
1. Retention/Collection of Documents
This message is being sent to you because you may have possession and/or knowledge of the existence of documents relevant to the above lawsuit involving the company. This written notice is to ensure that all relevant documents have been searched for and collected. As used in this notice, the terms “document,” “data” and “information” are used in the broadest sense and apply not only to paper documents or communications. Documents and information, in whatever form, that is relevant to this matter must be retained and preserved. You must continue to preserve all paper and electronic communication until you have received written notice that this litigation hold has been released.
Accordingly, please review the description of documents set forth below, and if you have possession or control of, or know of the existence of, any responsive documents, whether in hard copy or electronic form, please follow the instructions provided below for getting a copy of the documents into the hands of the company’s lawyers.
We have an obligation to maintain and preserve all documents and records, including electronic information, such as e-mail files, relating to the lawsuit. Please, therefore, locate and retain all records and files and documents that relate to [the lawsuit and/or the incident and/or the transaction, etc.]. The failure to adequately preserve information could result not only in the loss of information that could hurt or help the company’s legal position, but could also result in court-ordered sanctions such as default, imposition of financial penalties or could form the basis of a claim for spoliation of evidence. Therefore, it is imperative that anyone who has control over potentially relevant information is aware of the need to preserve it and that the company implement measures to prevent the destruction or spoliation of electronic data. As a first step, the company must immediately suspend the deletion, overwriting or any other policies or practices that may destroy electronically stored information that is relevant to his lawsuit. If you have any doubt about whether to retain any documents or information, you must preserve and retain the information until instructed otherwise.
THIS NOTICE SUPERCEDES ANY AND ALL EXISTING COMPANY DOCUMENT RETENTION POLICIES. DOCUMENTS IN ANY WAY RELEVANT TO THIS CASE MUST BE RETAINED.
If you know of other company employees who were involved in any way in [the lawsuit and/or the incident and/or the transaction, etc.] or who has had contact with the Company concerning such matters, please send me an email with their names.
If anyone affiliated with [opposing party] or its outside law firm [list firm name] speaks to you about this lawsuit, do not answer any questions that might be asked or provide any information to such individual. Please contact me immediately, should you receive such a telephone call or personal contact. Similarly, if you become aware that one of the Company’s customers has been contacted by [opposing party] or its outside law firm [list firm name] regarding this lawsuit, please contact me immediately.
2. Documents
At the present time, we do not know all of the documents that may exist that must be maintained for this lawsuit. However, at a minimum, please search for and maintain the following:
[list]
3. Collection Guidelines
In responding to the above, please review the files and records over which you have control to identify the existence of responsive documents. Each and every likely location should be searched, including:
File drawers
Desk and office drawers
Personal files/computers at home
Office computers and laptops
Active emails
Emails in folders
Attachments to emails
Documents on hard drives
Documents on portable media, including floppy disks, CD’s, memory sticks.
Servers
If you have responsive hard copy documents, please put them in a folder labeled “Documents of [insert your name here].” Please copy documents in the manner in which they are kept in your files, and please copy the file folder labels, if any, of the folders that documents may be maintained in.
Please supply electronic documents in electronic form. Please do not print them out. If you have responsive electronic documents on the hard drive of your personal computer, please put those files only on a disk, CD or zip disk labeled “Documents of [insert your name here]” and put the disk, CD or zip disk in a similarly labeled folder.
In undertaking this exercise, no files should be deleted (paper, electronic, or otherwise).
Proprietary Information and Company Official Information must be produced. Identify such information in accordance with its proper status.
It does not matter how old or recent the document is, as we are required to produce all responsive material.
If a responsive document is extremely difficult to supply, please contact me directly to discuss the logistics and the reasons you believe it would be difficult to provide the entire document.
If you believe that you once had responsive electronic documents, but no longer possess them because such documents have been lost or deleted (either from your computer or from the Company’s servers), please contact me directly and immediately to discuss whether such documents can be recovered. This is extremely time sensitive in view of the recycling of the Company’s electronic information back-up tapes.
Please hand deliver the folders to ______________________________ or _______________________, preferably no later than the end of business on [INSERT DATE].
If you have any questions, please do not hesitate to contact me directly at [telephone number and email address]. Please reply promptly to acknowledge that you have read and understood the preservation obligation stated in this litigation hold notice.