Extract from Onna’s article “What is a Legal Hold?”
While most legal professionals are familiar with legal holds, that doesn’t mean they look forward to receiving one. While properly executing a legal hold doesn’t have to be complicated, compliance requires careful planning and preparation.
What is a legal hold (litigation hold)?
A legal hold, also known as a litigation hold, is the process organizations use to inform relevant parties (custodians) that they must preserve their data for anticipated litigation. The duty to preserve evidence can be court-ordered or self-initiated for internal investigations, breach of contract, or a complaint that could trigger or threaten litigation.
A legal hold applies to hard copies of documents – logs, notes, forms, bulletins, photographs, appointment books, and any other type of physical records – and to electronically stored information (ESI), including any relevant electronic data, no matter the format or storage method.
The importance of legal holds in eDiscovery
A legal hold prevents the spoliation of evidence to ensure that a plaintiff will have fair access to any information that might be relevant to their case. Rule 37(e) of the Federal Rules of Civil Procedure (FRCP) addresses sanctions for failure to preserve ESI, including potential jury instructions revealing that the lost information was unfavorable to the party or even case dismissal or default judgment. Disputes over the spoliation of evidence and resulting sanctions requests are among the most common eDiscovery disputes every year.