It’s a virtually inevitable scenario in companies of all sizes and types and in all industries: Your employer has been sued. As corporate counsel, one of your many duties is advising your client what steps it should immediately take to protect itself. The previous columns in this series have discussed the myriad sources of corporate data, and how to manage them before litigation. This column presents practical, prudent actions to take upon learning the company is a defendant in state or federal court.
One of the first steps that in-house counsel should take upon learning of an action filed or threatened against the company is issuing a litigation hold, or preservation, notice. This is a written instruction to individuals and/or departments that are custodians, or potential custodians, of data in any form that might be relevant or responsive to discovery requests in the suit. The hold notice directs its recipients to immediately preserve the relevant information so that it may be reviewed and possibly produced in the litigation, and not destroyed.