The COVID-19 pandemic has forced companies to adapt to significant changes in the business environment. In March 2020, many companies instituted office closings, sending most of their employees’ home to work remotely. In turn, this led to the increased use of home computer systems, and new collaboration and communication platforms, such as Microsoft Teams, Slack and Zoom. Nearly two years later, it is apparent that at least some remote work, and the increased use of home systems and collaboration and messaging applications, is not going away.

Optimal legal hold management begins with the adoption of “best practices” including: issuing legal holds as soon as practicable; scoping notices to avoid under-retention or over-retention; properly documenting and tracking legal holds; sending periodic reminder notices to hold custodians; and promptly lifting legal holds once the underlying matters are resolved. Beyond these basics, business changes surrounding the COVID-19 pandemic should motivate companies to update their legal hold policies and practices to ensure that they properly address remote work scenarios, including data repositories outside the office and the increased use of collaboration tools beyond email. This article addresses traditional legal hold best practices and recommends consideration of updates post-COVID.

Legal Hold Best Practices

  • Prompt implementation of legal holds. A legal hold should be implemented promptly, as soon as a party is on notice of, or reasonably anticipates, litigation or an investigation See Nupson v. Schnader Harrison Segal & Lewis, No. 18-cv-2505 (E.D. Pa. Apr. 07, 2021). The failure to implement timely legal holds, including the suspension of automatic deletion protocols, and sending legal hold notices to custodians of relevant information, can lead to the loss or deletion of evidence and result in costly remedies, or even spoliation allegations and sanctions. See Fed. R. Civ. P. 37(e) (setting forth potential remedies for the improper loss or deletion of relevant electronic evidence); DR Distributions v. 21 Century Smoking, 513 F. Supp. 3d 839 (N.D. Ill. 2021) (court imposed sanctions where evidence was lost as a result of the responding party’s failure to issue written litigation holds and failure to disable autodelete functions.)
  • Properly scoping legal holds. This requires a “balancing act.” On one side, it is important to make sure that the list of hold notice recipients, and identification of relevant information sources, are sufficiently broad and comprehensive to preserve identifiable discoverable information. See Fed. R. Civ. P. 26(b) (defining the scope of discovery to include all information relevant and proportional to the claims and defenses of the parties); Mahboob v. Education Credit Management, No. 15-cv-0628-TWR-AGS (S.D. Cal. March 1, 2021) (court awarded attorney fees to requesting party after deletion of cellphone data, that should have been placed on hold).