The Art of the Litigation Hold Notice: Complying with Rule 37(e) for Compliance’s Sake and Your Own
Rule 37(e) of the Federal Rules of Civil Procedure is among those rules subject to the latest round of proposed amendments, and, provided neither Congress nor the Supreme Court decide to intervene, which is highly unlikely, will go into effect in December 2015. Rule 37(e) creates a duty to preserve electronically stored information (ESI), which, in practice, boils down to having a litigation hold.
The new Rule 37(e) does not alter the need for a litigation hold; in fact, it makes the proper implementation of a litigation hold even more important, as the rule allows the court to take broad curative measures to remedy spoliation, including some that could quite negatively impact the case of the offending party. Additionally, a well-written litigation hold notice is advantageous for counsel as it results in the right information being preserved by the right people, making it easier for you to successfully advocate for your client.
It has happened. What it is and when it occurs are terribly fact specific and context dependent, but most of us can generally identify the triggering event for a litigation hold with relative ease. So now you know you have a duty to preserve information. You know that, but that knowledge does not do much good unless the people (custodians) who are actually in possession of the discoverable ESI know it, too. Although time is of the essence, you will want to carefully consider the wording of your litigation hold notice, what precisely is to be held and who gets the litigation hold notice.
Wording of your litigation hold notice
The most important aspect of the wording of your litigation hold notice is its breadth. If it is stated too narrowly, many people will think the litigation hold notice does not apply to them and that they simply received it as a precaution. Interestingly enough, overshooting in the opposite direction ‒ that is, drafting a litigation hold notice that is quite broad ‒ can have the very same effect as a narrowly tailored notice. The recipients will read it and think, “this was just sent to everyone, and I don’t have anything the lawyers would want” and go merrily on their way, deleting email as they please. To avoid this reaction, be as clear as possible in your wording. State that the recipients have received the hold because they have been identified as having information that may be important to the matter at hand.
What is held?
Email is obvious (I even used it as my example in the previous paragraph), but what other types of ESI must be held? Depending on how business is conducted within a company, text messages, instant messages, voice mails, audio or video recordings of meetings and blog postings are just some of the other forms of ESI that could be subject to a litigation hold. Make sure your litigation hold notice communicates precisely what is to be held so employees do not assume ESI just means email.
Who gets the litigation hold notice?
This point may seem obvious: Identify anyone within the company who may potentially have information discoverable in the litigation and send them a clearly worded, specific, yet not overly narrow litigation hold notice. Done, right? Nope. The litigation hold notice should only go to the people identified by counsel as needing it and no one else. You should clearly state in your litigation hold notice that the notice is to be shared only by counsel and that if someone feels that someone else in the company may have relevant information, he or she should let counsel know, and counsel will handle reaching out to this person. Also, it is not enough to state a “no sharing policy” in the litigation hold notice. You should follow up with employees throughout the course of the prediscovery and discovery process to make sure this information is not being shared inappropriately.
Having a well-written litigation hold notice is not just essential for compliance with the Federal Rules of Civil Procedure, that is, making sure no discoverable information is lost, but it is also useful to you in keeping nondiscoverable, irrelevant information out of your data set. This will save time and money as you continue in the discovery process.