Legal Updates

Protecting the Enterprise: The Executive's Guide to Litigation Holds

What is a litigation notice?

A litigation hold notice is a formal instruction issued by a company or individual directing the recipient to preserve documents, emails, or other records that may be relevant to a legal dispute or investigation. The notice usually contains language about what categories of documents or evidence should be preserved and who to contact if there are any questions regarding its scope. 

When should an employer issue a litigation hold notice?

A litigation hold notice should be issued once litigation seems imminent or there is a concern over the destruction of evidence. Such a notice may be contemplated if the company receives a demand letter from an attorney, an employee files or threatens to file a complaint with the NJ Division on Civil Rights, the employer receives a notice of charge from the Equal Employment Opportunity Commission, or the employer has a good faith belief that exonerating or relevant evidence may be destroyed. 

What role does IT play in implementing a litigation hold?

If an employer receives a litigation hold notice, best practice is to notify your legal and IT teams. IT teams should suspend automatic deletion policies, preserve backup data and records, secure relevant devices and accounts and assist in collecting and mining ESI. 

What are best practices for New Jersey employers receiving a litigation hold notice?

Some best practices if a litigation hold notice is received include:

1. Acting quickly once the letter is received to put management and IT on notice;
2. Periodically remind custodians that the hold remains in effect;
3. Send the written hold notice to personnel and track employee acknowledgements;
4. Formally release the hold once the matter is resolved.

Properly managing the litigation hold letter helps employees avoid allegations that evidence was deleted, which, in some instances, can lead to court sanctions, adverse inferences, or financial penalties.