Extract from Petra Pasternak’s article “Pivotal Case Law for Legal Holds”
The risks of a failed litigation hold can have serious fallout. Never mind the internal embarrassment of losing potential evidence in a case. An improperly handled legal hold can lead to unfavorable settlements, costly court sanctions, and long-term damage to an organization’s reputation.
Today, legal holds are essential to locking down electronically stored information, or ESI, that may be relevant in active or anticipated litigation. The courts over the years have shown they will not tolerate sloppiness in the legal hold process, including delays in suspending data retention policies, failure to enforce custodian compliance, or other errors that lead to the loss of potentially relevant information.
Given the volume and complexity of today’s digital communications, understanding important milestones in U.S. case law around legal holds and how the rules for data preservation have evolved — and learning from real-world missteps — is more important than ever. Some of the pivotal moments came in the 2002 opinion in Zubulake v. UBS Warburg and the 2014 ruling in Knickerbocker et al. v. Corinthian Colleges (both employment discrimination cases), and 2018 intellectual property infringement lawsuit Klipsch Group., Inc. v. ePRO E-Commerce.
Zubulake v. UBS Warburg: Setting the Standard
The modern framework for safeguarding potentially relevant information has roots in the landmark employment discrimination case Zubulake v. UBS Warburg, which set the tone for how courts evaluate legal hold efforts today.
