what triggers a litigation hold

TechnoCat Tidbits: What Triggers Litigation Hold?

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Today, we embark on a quest to unravel the triggers that ignite the legal hold process. It will be a wild ride as we navigate the realm of legal obligations and preservation.  Or at least slightly more fascinating than one might imagine at the outset!

What is a Preservation Obligation?

Think of it as a sacred duty bestowed upon individuals and organizations to safeguard and protect potentially relevant evidence in anticipation of legal battles. It’s like having a secret mission to guard the treasure trove of Electronically Stored Information (ESI) from any harm or destruction. (aka the dreaded… Spoliation).

When a preservation obligation arises, it is a signal to take proactive steps to prevent the loss, alteration, or destruction of vital evidence that could be critical in a legal dispute. It is all about preserving the integrity of the evidence and ensuring a fair playing field for all parties involved.

warning sign on tablet

The purpose of a preservation obligation is two-fold:

  1.  Maintain the authenticity and reliability of the evidence. Ensuring that it remains in its original form and can be presented accurately during legal proceedings. No funny business or tampering allowed!
  2. Promote fairness by preventing any party from manipulating or withholding crucial evidence to gain an unfair advantage. It is all about a level playing field, my friends!

To fulfill these obligations, parties must act. They issue legal hold notices, which are like secret messages alerting custodians to preserve any relevant information. Like a call to action, telling them to keep their hands off the delete button and refrain from altering or destroying any ESI that could be important.

legal hold details on dashboard

What Triggers a Preservation Obligation

Preservation obligations come into play when there is a reasonable anticipation of litigation or when there is a legal duty to preserve evidence due to specific events or circumstances. This could include receiving notice of potential claims, facing threats of legal action, dealing with regulatory investigations, or even complying with various laws and regulations.

  1. Reasonable Anticipation of Litigation: When parties have a reasonable expectation of being involved in a legal dispute, such as a potential lawsuit, arbitration, or regulatory investigation, the tides of a legal hold begin to rise. A bit like sensing a storm on the horizon, prompting the need to brace ourselves and safeguard the Electronically Stored Information (ESI).
  2. Notice of Claims: Another trigger arises when parties receive notifications of potential claims or threats of legal action. These can take the form of demand letters, cease and desist notices, or other official communications indicating an intent to pursue legal recourse. When these missives reach your shores, you must raise the flag of caution and initiate the preservation process.
  3. Regulatory Investigations: Legal holds extend beyond the realm of litigation alone. When regulatory authorities launch investigations or audits that may result in legal proceedings, the need for preservation emerges. Whether a government agency, a regulatory body, or an industry watchdog, their investigative activities activate the obligation to safeguard relevant evidence.
  4. Compliance Obligations: Ah, my friends in heavily regulated industries! Your journey through the realm of legal holds is intricately tied to compliance obligations. Certain laws and regulations require organizations to preserve specific types of information for designated periods. Failure to comply with these obligations can lead to dire consequences, including fines and penalties. So, remain vigilant and chart your course in alignment with these compliance triggers.

Each legal expedition is unique, and the triggers for a legal hold may vary depending on the circumstances at hand. Whether it is the reasonable anticipation of litigation, notice of claims, regulatory investigations, or compliance obligations, pay heed to these signals, and set sail on the path of preservation.

Ignore at Your Own Peril

Now, here’s the deal: failing to comply with preservation obligations can have dire consequences. Courts can dish out sanctions like adverse inferences, hefty fines, or even dismissals of claims if they find that a party didn’t do its duty to preserve evidence properly.

So, my friends, it is crucial to take preservation seriously and handle it with care.

As you embark on your preservation adventures, remember the importance of protecting that treasure trove of evidence. It’s all about upholding integrity, fairness, and the pursuit of justice. (And not getting slammed with nasty sanctions for letting spoliation occur!)

May your legal voyage be smooth, your crew steadfast, and your commitment to legal holds unwavering.

Catherine “Cat” Casey on EmailCatherine “Cat” Casey on Linkedin
Catherine “Cat” Casey
Chief Growth Officer at Reveal
Catherine “Cat” Casey is the chief growth officer for leading AI-powered e-discovery technology Reveal. A global thought leader on the application of AI and advanced technology to the practice of law. She is a frequent keynote speaker and outspoken advocate of legal professionals embracing technology to deliver better legal outcomes. Casey has more than a decade and a half of experience assisting clients with complex e-discovery and forensic needs that arise from litigation, expansive regulation, and complex contractual relationships. Casey has an A.L.B. from Harvard University and attended Pepperdine School of Law.

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