Litigation Hold Notice
(Federal)

Summary

This template is a litigation hold notice that may be distributed to a client's employees and staff. It assumes that no lawsuit has been filed but that the client may reasonably anticipate litigation. This template includes practical guidance and drafting notes. Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policies and put in place a litigation hold to ensure preservation of relevant documents. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 33-IV[C][1]; Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir. 2001); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). This litigation hold notice or memorandum notifies a client's relevant employees of their duty to preserve and ensures the client meets its legal responsibilities. The duty to preserve evidence is not limited to paper documents or to the company's own computer systems and central server. Rather, this duty applies to all documents within the control or custody of all the party's key players who are likely to have information relevant to the potential lawsuit, as well as to any location (personal devices, home computers, etc.) where such electronic documents might be located. See Marshall v. DentFirst, P.C., 313 F.R.D. 691, 697 (N.D. Ga. 2016); see also Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 33-IV[C][10]. Your client's preservation obligations begin once the client may reasonably anticipate litigation. This is a fact-based, case-by-case assessment, but the duty to preserve typically is triggered when a party: • Seriously contemplates bringing a lawsuit • Receives a credible demand, cease and desist, or similar letter from another individual or entity • Learns that it is the target of an investigation • Is served with a summons and/or complaint, or a subpoena for information • Otherwise receives notice (such as through an employee or third party) of a potential claim against it On the other hand, it is unlikely that a duty to preserve would be triggered by: • Vague threats of or rumors about litigation • A litigation threat from a person who is not deemed credible Encourage your client to educate its employees or other relevant individuals on when, how, and to whom to raise concerns about potential litigation. If you determine that litigation is a reasonable possibility, err on the side of caution and issue a litigation hold. Failure to preserve relevant information once a duty of preservation is triggered may result in court-ordered sanctions, cost-shifting, adverse jury instructions, or even default judgment or dismissal. This litigation hold is based on federal law and does not include any potential state law nuances. Be sure to consult applicable state and local law for different or additional requirements. For a full listing of key content covering management of in-house legal departments, see In-House Legal Department Management Resource Kit. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For a full listing of key content covering litigation holds in federal lawsuits, see Litigation Hold Resource Kit (Federal). For information on document retention policies, see Document Retention Policy Checklist (Federal). For more on a party's document preservation obligations, see Preserving Evidence (Federal). For a litigation hold reminder, see Litigation Hold Reminder (Federal).