When a lawsuit is filed or you receive a subpoena or notice of a government investigation(4), one of the first things on your "to do" list is to preserve evidence. Your lawyers can assist with that process. The steps should include the following.
1. Implement a "litigation hold" program to identify, preserve and maintain relevant information. Companies that face litigation should have a process in place to identify, collect and preserve relevant information as soon as litigation is reasonably anticipated. The process will be more efficient and effective if it is in place before you need to preserve evidence for a specific matter.
2. Issue a "litigation hold" early and often. Issue a litigation hold at the outset of litigation or as soon as it is reasonably anticipated. Also, periodically reissue a litigation hold to be certain that new employees are aware of it, to remind others that the litigation is ongoing, and to inform everyone about any new issues or any changes to the scope of what must be preserved.
3. Suspend all routine destruction of relevant information. Many companies have document retention policies for hard copies and automated deletion of e-mail, voice mail and other electronically stored information. The litigation hold must suspend those deletion policies immediately to preserve relevant information. One approach is to apply an electronic/automated hold on all e-mail of individuals who may have relevant information. Once that hold is in place, that individual’s e-mail (and probably the electronic calendar) is electronically preserved, even if he hits "delete." Be aware, however, that the electronic hold may not preserve documents or any information other than e-mail.
Consult with your Information Systems department about the most effective way to suspend existing document retention policies, and be sure you do it right away. In today’s business world, information is created and deleted rapidly. You may face sanctions if you do not act quickly enough to suspend routine destruction.
4. Determine the scope of relevant information. This analysis covers two fronts: (a) substantively, what topics may be at issue in the dispute, and (b) technically, how is that information generated and maintained.
a. Substantively, identify the topics likely to be at issue and where the relevant information may be maintained. You and your lawyer together can determine what subjects will be relevant to the dispute. Sources of that information often include files of people involved in the transaction and, depending on the issue, files from accounting, human resources, payroll, purchasing, research and development, risk management, claims, etc.
b. Technically, identify the manner and "places" in which the relevant information is generated and maintained. This often includes hard copy files, desktops, servers, backup tapes and possibly home computers and personal devices (PDAs, Blackberries, Treos, I-Phones).
You must determine all of these sources to devise a reasonable plan for preservation.
One potential glitch to be aware of: Preserve application software necessary to view information. If you and your lawyer concluded it is necessary to preserve the information, you should also preserve the software necessary to access it. By the time litigation arises, the software may no longer be available on the market.
5. Be specific in the litigation hold. The litigation hold should:
a. Describe the matter in dispute;
b. Provide specific examples of the type of information to be
c. Identify potential sources of the information; and
d. Inform recipients whom they should contact if they have questions.
6. Document the litigation hold process for each case. The effort to preserve relevant information may be challenged, and you may need to demonstrate to the court that the effort was reasonable. The documentation of the process should include:
a. The date the hold was implemented, and by whom;
b. The scope of information included in the initial hold and in any subsequent hold;
c. The dates when reminders or revised holds were issued;
d. The list of persons contacted and individuals and systems involved in the preservation effort; and
e. The list of who produced (or preserved) documents and when.
7. Monitor the preservation effort. The preservation effort must be monitored. The documentation outlined above will help you demonstrate reasonable monitoring efforts. Also consider:
a. Written confirmation from each recipient of the litigation hold;
b. Periodic reminders; and
c. Notices of any development in the litigation that may change the scope of relevant information to be preserved.
8. Implement procedures to release or destroy information after the litigation is concluded. At the close of the litigation, determine whether you have any business reason or regulatory obligation to maintain the information. If not, communicate to each recipient of the litigation hold that the information may be destroyed. Any routine or automated retention/destruction process that has been suspended should be re-implemented.
Finally, if you have any questions about litigation holds, particularly as they relate to electronic discovery issues, it is best to seek counsel.
4 The duty to preserve may arise before suit is filed or a subpoena is received, because the duty arises when you can reasonably anticipate litigation. See "Know When to Hold ‘Em" in this issue of Liability Alert.