The implementation and oversight of a legal hold are crucial to preserve relevant information and avoid sanctions. Not only must counsel determine the appropriate scope of reasonable preservation of relevant evidence as tempered by proportionality to the needs of each case, they must effectively communicate that obligation and monitor their client’s compliance. Failure to do so risks sanctions and even claims of legal malpractice. Analysis of recent cases addressing legal holds yields the following best practices:

  • Provide clear, written instructions to clients describing the information to be preserved, the reason why, and the potential consequences of failing to do so, as well as a contact for questions.
  • Make a full investigation of clients’ data sources and custodians, and document that effort.
  • Determine which relevant data sources are subject to automatic deletion, and direct that deletion be stopped. Document these efforts.
  • Require acknowledgement of the legal hold by each recipient.
  • Monitor clients’ compliance and document those efforts.

Counsel Must Provide Clear Preservation Directions

Failure to effectively communicate a legal hold can have disastrous results.The plaintiff in Franklin v. Howard Brown Health Center, No. 17-cv-8376 (N.D. Ill. Oct. 4, 2018), sought emails and text messages concerning alleged harassment. The defendant produced only a handful and asserted that it issued a legal hold, but acknowledged that no in-house or outside counsel oversaw the process, leaving employees to decide responsiveness. Further, when one of the accused harassers left the company, his computer was wiped seven days later, despite the legal hold. Finally, while the defendant’s general counsel directed that the plaintiff’s computer be sequestered when she threatened litigation, the general counsel did not provide any storage instructions, and two years later, it could not be located. Counsel also misunderstood how instant messages were retained and failed to stop their automatic deletion.