When your company faces a potential lawsuit, it is of the utmost importance to begin preserving any documents that could be considered relevant to the case. This is done through the issuance of a litigation hold directive to employees, informing them of what documents to preserve and segregate in order to maintain that preservation. In order to implement a proper litigation hold and avoid potential court-issued sanctions, there are certain requirements that must be met. The first issue is timing. Once the threat of litigation is realized, whether that be through a general employee complaint or another signal of disagreement, you should immediately begin working with your attorneys, whether in-house or outside counsel, to draft a litigation hold memo to distribute to your employees. This memo should be drafted with the assistance of counsel and list the general documents or communications that should be preserved, the manner in which searches should be conducted to locate the responsive documents, and the manner in which such documents should be turned over to counsel.
Your attorney should be working with you every step of the way to ensure that your litigation hold is conducted properly and, to further ensure that the litigation hold is conducted properly, it should be formalized in your existing employee handbook. When employees are collecting and saving relevant documents, it is better to be safe than sorry. Anything that could be viewed as potentially relevant should be saved. Leave it to your attorneys to sort through the information and decide what will be passed along to opposing counsel should a lawsuit arise. It is also essential to inform employees how long electronic communications, such as emails and text messages, are stored on the system’s hard-drive, or the cloud. Losing documents to your system’s automatic deletion process after a litigation hold has been issued could result in court-issued sanctions. Your legal counsel should also be made aware of any system cleanouts or wiping of files immediately upon recognizing the threat of potential litigation.
To ensure that your company or business is conducting itself appropriately under a litigation hold, it is necessary to work directly with your legal counsel from the outset. The attorneys at Rock Fusco & Connelly can effectively advise your company through every step of the litigation hold process.