Litigation holds are used at the outset of potential litigation to prevent parties from destroying information potentially related to a law suit and there are also several derivative uses that apply to third parties that may have relative information that pertains to your suit. For third parties, one particular scenario that comes to mind is traffic camera footage which is routinely wiped or text message archives held by phone carriers which are not retained, typically, for more than several days.
When considering a law suit or the defense thereof and what evidence is essential, the first step should be issuing a statement to the target, whether it's an opposing or third party, informing that party that they are the subject of a potential suit or are in possession of information relevant to a pending litigation and that that information should not be destroyed.
A litigation hold letter should trump any businesses retention policy and make the recipient of said communication responsible for the preservation of any evidence in their possession, custody or control. These initial considerations are a crucial component in the overall management of a case as well as setting the ground work for discovery.
So what info falls within the ambit of a litigation hold? Just about anything. Think for a long hard moment about all the ESI that is shared on a daily basis. More than 80 percent of all business communications, whether internally or externally, are conducted via electronic means or stored electronically. PDAs are subject to discovery holds, business conducted on laptops or personal home computers. Text messages, voice mails, Skype communications - the list goes on and on. Use your imagination and make sure you include it in your litigation hold letter.
Lastly, don't expect companies to adhere to their own document retention policies. When surveyed, a majority of large well-known corporation admitted that they do not follow their own retention policies or monitor their implementation. Be proactive. Be creative and stay on top of the e-discovery game.
