Understanding Legal Hold: Preserving Evidence in Litigation
May 23, 2023
The legal system places a high value on preserving significant evidence before or during litigation. A legal hold, also known as a litigation hold or preservation order, is issued to protect evidence against destruction, alteration, or loss. Let's look at what a legal hold is, what it means, and what responsibilities it puts on individuals and organizations involved in judicial procedures.
The Purpose of Legal Hold
Legal holds protect potentially relevant documents, data, and information that may be needed as evidence in a pending or reasonably anticipated legal issue. Therefore, parties interested in the litigation or investigation must take proactive actions to safeguard the integrity of evidence by placing a litigation hold.
Individuals and organizations must take specific procedures to meet preservation requirements when a litigation hold is issued. These could include:
Issuing Hold Notices: Parties must send formal notices to employees, essential stakeholders, and other parties concerned, asking them to keep all potentially relevant material. Typically, these warnings define the scope of the legal hold and include specific directions on how to comply.
Suspended Document Destruction Policies: During the litigation hold, any routine deletion or change of electronic records and physical documents must be temporarily suspended. This prevents unintended destruction or alteration of evidence.
Implementing Preservation Measures: Organizations must implement realistic measures to ensure evidence preservation. This may be part of suspending auto-deletion capabilities, retaining backup tapes, and deploying litigation hold software or other technological solutions to track and manage preservation activities.
Consequences of Non-compliance: Failure to comply with a litigation hold can have serious consequences. Courts view non-compliance as violating the duty to preserve evidence, which may result in severe sanctions and adverse inferences. Sanctions may include monetary fines, adverse evidentiary rulings, preclusion of evidence, and even an unfavorable judgment or negative inference instructions to the jury.\
Legal Hold Compliance Best Practice
The following best practices can be used to ensure effective compliance with legal hold obligations:
Create and Implement a Legal Hold Policy: Organizations should create a litigation hold policy that explains the procedures, duties, and expectations for preservation obligations. This policy should be presented to all workers and updated regularly to reflect changes in the legal environment.
Collaborate with Legal Counsel: Working closely with legal counsel is critical to ensure the legal hold procedure is carried out correctly. Legal team can advise on the scope of the hold, provide preservation advice, and handle any legal concerns.
Document Preservation Efforts: All preservation efforts made during the legal hold must be documented. This includes keeping track of litigation hold notices issued, correspondence, and any steps taken to preserve electronically stored information and physical evidence. Documenting these efforts shows a sincere commitment to compliance.
Legal hold is an integral part of the legal system that tries to preserve and protect essential evidence before or during ongoing litigation. Individuals and organizations must make proactive efforts to ensure the integrity and availability of evidence by placing a legal hold. Failure to comply with litigation hold responsibilities can have profound implications, emphasizing the necessity of understanding and complying with preservation rules rigorously. Parties can efficiently navigate the legal hold process and safeguard the integrity of evidence in litigation by employing best practices and coordinating with legal counsel.
Traact offers legal hold features within its platform, along with disputes and litigation management, to simplify and digitize this process. Our platform allows you to store documents as soft copies, which helps you to upload them whenever you are notified about a legal hold. This saves much time, and the process becomes a lot faster. In addition, if a custodian misses uploading the documents, Traact sends them regular notifications to remind them about the same.
A dashboard view of legal hold
Since litigation holds do not last forever, you can quickly release the hold and notify the custodians about the same. Once there is a resolution from the court and the documents are no longer required, Traact enables you to message the other party that the legal hold has been released.