Your company has just received a subpoena. It is the first sign that the company may be subject to an investigation or potential future litigation. Amid collecting documents, performing an internal investigation and considering strategic issues there’s another, admittedly unexciting, task at hand: Crafting and disseminating an appropriate litigation hold.
A litigation hold, sometimes referred to as a document hold, is just a communication within a company informing employees that they must preserve certain information for potential later use in litigation. The term took hold following the landmark e-discovery case Zubulake v. UBS Warburg, which explained, “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to safeguard all relevant data.” Since Zubulake, there has been a growing body of law and commentary on the myriad technical issues that can arise for companies with large amounts of e-data and how those issues can be handled. While that guidance is useful, it doesn’t always answer the more practical questions many companies have: What’s a litigation hold and how do I do it?