Riley Bennett Egloff Magazine April 2018 | Page 15

possession of responsive information. Perhaps the best
place to start is with your attto discuss preservation of
electronically-stored information. Then talk to each of
the employees who may have responsive documents
to determine where they are stored. Is all information
stored on your company’s network? Do employees
5 Steps to Take if You Receive a keep documents on their hard drives? Do employees
keep any information on personal devices including
Litigation Hold Letter
tablets, phones, or personal computers? Make sure
Contact counsel. Although the letter may sound that each employee who has responsive information
fairly straightforward, and your initial reaction to the understands the obligation to preserve the data and
letter may be that you believe that you have already takes the appropriate measures to do so.
taken all of the necessary steps to comply with the
requests outlined in the letter, we strongly recommend
Maintain the hold and follow-up. After you have
that you contact counsel right away. The primary reason identifi ed responsive information and the employees
for reaching out to counsel is to let counsel review the who may have such information, make sure that the
letter, then evaluate whether a response is appropriate. hold is in place. Confi rm with your IT department
In many circumstances, even a brief response to the that the server storage is suffi cient, automatic data
letter could help protect your company’s interests in the purges are disabled, and that any backups are working
long run. For example, if the letter requires preservation properly. Have any paper documents placed in a secure
of “all electronic data,” your counsel could write location – either onsite or off site. Keep a reminder on
back and explain your company’s ordinary document your calendar to review this process at a regular interval
retention policy, and off er to preserve additional data to confi rm that the hold remains in place and employees
from certain employees. By responding to the letter, are taking all necessary measures to preserve any
you are notifying the sender of your plan for responding responsive documents.
to the letter and are protecting your company’s interests
moving forward, in the event that suit is fi led.
Do not ignore it. Finally, the single most
important step to take when you receive a Litigation
Determine what documents are responsive. Hold letter is this: do not ignore it. If you receive a
This sounds easier than it will actually be. If the Litigation Hold letter, the temptation to let it sit on your
Litigation Hold letter is drafted as broadly as most, desk will be high. There’s no profi t to be made from the
it will likely seek documents specifi cally relating to letter, no customers to satisfy, no goodwill to be earned,
the matter at issue (for example, the fi le relating to and most likely, a lawsuit lurking in the future. So it
a particular customer or client), but also may seek is easy to understand why addressing this letter would
documents relating to broader corporate policies. Study not be high on your priority list. Nevertheless, do not
the letter closely, and work with counsel to make sure ignore it. If you do, there may be serious consequences
you understand which documents are covered by the for doing so, and you may be exposing your company
to unnecessary risk in future litigation if the requested
request.
information is not properly pre