Lawyeringlaw.com Tip of the Month

Tip for December 2011

Remember to send Litigation Hold Letters to clients who need to preserve evidence

The law imposes an affirmative duty upon the parties to a lawsuit to preserve all evidence that potentially may be relevant to the claims or defenses of any party to the litigation. Recently, new procedural rules and an expanding body of case law have recognized the specialized nature of electronically stored information (ESI) and imposed strict obligations on the parties to a lawsuit to preserve all ESI, regardless of its location (e.g., desktop or lap top computer, server, thumb drive, backup tapes, digital audio recording, etc.).

Under certain circumstances, failure to adhere to these newly expanded duties can result in the Court imposing severe sanctions, up to and including entry of a default judgment in the most egregious cases.  In Swofford v. Eslinger, 2009 Westlaw 3818593 (M.D. Fla. September 28, 2009). a trial court levied monetary sanctions against an in-house lawyer for the lawyer's failure to send out a litigation hold memo after receiving a preservation notice from opposing counsel.  (The process of preserving information for potential use in litigation is often called a "litigation hold.")

To avoid sanctions or claims for malpractice based on a failure to adequately directing clients to preserve information for potential use in litigation, lawyers should make it a practice to send litigation hold letters to clients who are required to preserve such information.  Sample litigation hold letters are contained in this web site under "Model Letters to Clients and Non-Clients."