Litigation: Be careful what you say

Understanding the discoverability of legal hold notices

In its simplest terms, a legal hold (also known as a litigation hold, preservation order, suspension order, freeze notice, hold notice or hold order) is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated, according to Shira A. Scheindlin and Daniel J. Capra, who wrote The Sedona Conference, Electronic Discovery and Digital Evidence. Legal holds can take many forms and may be initiated by individuals within and/or outside an organization. For example, a hold can be oral, written or electronic and may be implemented by company executives, in-house counsel, representatives from the human resources or information technology department or outside counsel.

No matter who or how a hold is implemented—issuing a proper hold is essential. The purpose of a legal hold is to inform all relevant personnel of their obligation to locate and preserve all information that may be pertinent to actual or threatened litigation. To accomplish this task, a legal hold must provide some type of description of the actual or anticipated proceeding, identify the scope and type of information to preserve, and specify the locations of the information to be preserved. The hold must also confirm that any applicable document destruction procedures or policies of an organization must be appropriately suspended. A legal hold communication should also explain the ramifications of failure to comply with its directives.

Despite the general prohibition on production of legal hold notices in discovery, there are circumstances when legal hold notices themselves will be discoverable. This exception applies upon a preliminary showing of spoliation, which is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

Only a handful of federal courts have addressed when an exception to the preclusion of discovery of legal hold notices will apply. In Major Tours v. Colorel, the district court acknowledged that legal hold notices are typically not discoverable but that a preliminary showing of spoliation may warrant an exception to this line of authority. There, evidence demonstrated defendants had waited nearly two years before attempting to comply with their preservation obligations and several witnesses did not know about the existence of a legal hold or its preservation obligations. The court found this evidence sufficiently demonstrated a preliminary showing of spoliation. No federal court appears to have defined the requisite showing for a preliminary elements of spoliation.

Contributing Author

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Margaret Koesel

Margaret M. Koesel is a partner in the Litigation, Labor and Employment Groups at Porter Wright Morris & Arthur LLP and is a Co-Author of...

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Contributing Author

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Tracey Turnbull

Tracey L. Turnbull is a partner in the Litigation Group at Porter Wright Morris & Arthur LLP and is a Co-Author of Spoliation of Evidence:...

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