A Litigation Hold Policy is the policy that instructs us in how to comply with state and federal law, as well as good business practice, in meeting our obligations in responding to “triggering events.” A triggering event is something that most often arises in connection with litigation or threatened litigation against the company. But, it may come from other sources as well.
For example, the company may get a letter or email requesting that it prevent the destruction of certain documents as a consequence of a lawyer’s investigation, a government investigation, the receipt of a subpoena, or a cease-and-desist letter. That is, a communication from an attorney, government agent or law enforcement may all be triggering events.
Once a triggering event has occurred, the company is under a requirement that it maintain documents against destruction, deletion, or alteration in any way until the legal need for those documents has ended.
Noncompliance may result in legal action against the company, including monetary sanctions and an adverse judgment in a lawsuit.
I hope it goes without saying, but just in case: The litigation hold supersedes any document destruction policy that would otherwise apply!
The litigation hold generally covers any materials which may reasonably be involved in threatened or actual litigation. Such materials may include original documents and electronic materials such as database entries, scanned documents, and emails. When in doubt, a litigation hold should be interpreted broadly. In most cases, a litigation hold will be accompanied by an explanation of the topics covered, the date range at issue, and the typical types of materials which should be preserved.
Just because there has been a triggering event and an initial determination for the necessity of a litigation hold, does not mean that the documents and materials will necessarily be turned over to a requesting party. There are circumstances that may dictate that the documents are not to be turned over. For example, the documents may be the work-product of the company that enjoys certain protections from discovery. Or, the documents may be subject to an attorney-client privilege that protects against their disclosure to third parties.
The Litigation Hold Policy is not simple to articulate nor to administer. However, it is a policy of which all CSRs should be knowledgeable and ready to follow once instructed by the company’s management.
Please note: This is the eighty-eighth blog in a series of Back to Basics blogs, in which relevant and resourceful information can be easily accessed by clicking here.