Lawyeringlaw.com Tip of the Month

Tip for March 2012

Issue Litigation Hold Letters that Sufficiently Advise Clients about Responsibilities

A lawyer should send a “litigation hold” letter to a client whenever litigation is reasonably anticipated. The letter and the client's “litigation hold” on records and documents should not be delayed merely because the parties are having amicable settlement talks in advance of litigation. The litigation hold letter should sufficiently advise the client as to what must be preserved. On July 31, 2012, in VOOM HD Holdings LLC v EchoStar Satellite L.L.C. (2012 NY Slip Op 00658), the court imposed sanctions for ESI spoliation because the litigation hold was neither early enough nor good enough, applying the Zubulake standard. The court determined that a litigation hold must affirmatively suspend its automatic-deletion function for its emails so that archived emails are not automatically deleted. It also cautioned that a litigation hold is insufficient when it leaves employees to make their own decisions as to what to keep.