Litigation Hold Notice
(TX)

Summary

This template is a litigation hold notice that may be used by in-house or outside counsel to instruct a corporate or organizational client's employees to preserve documents and electronically stored information (ESI) related to pending or anticipated civil litigation in Texas state court. The template includes practical guidance, drafting notes, and alternate clauses. A litigation hold is a notification a company's counsel sends to employees instructing them to preserve certain documents and information related to pending or anticipated litigation. The purpose of the hold is to ensure that the materials in question will be available for future discovery, both to support the company's own position in the case and to avoid any potential sanctions for destruction or spoliation of evidence. Texas law imposes a general duty to preserve evidence once a party knows, or should reasonably know that: • There is a substantial chance that a claim will be filed –and– • Evidence in the party's possession or control will be material and relevant to that claim Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003). A duty to preserve evidence may arise even though the other party has not directly notified your client that he or she plans to file suit or formally demanded that your client preserve relevant evidence. The relevant inquiry is whether a party should have anticipated litigation at the time it destroyed the evidence. A party knows or reasonably should know that there is a substantial chance a claim will be filed if a reasonable person would conclude from the severity of the incident, and other circumstances surrounding it, that there was a substantial chance for litigation at the time it destroyed the evidence. In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *43–44 (Tex. App.—Corpus Christi Apr. 16, 2020, orig. proceeding) (mem. op.); In re J.H. Walker, Inc., No. 05-14-01497-CV, 2016 Tex. App. LEXIS 483 (Tex. App.—Dallas Jan. 15, 2016, orig. proceeding) (mem. op.); Miner Dederick Constr., LLP v. Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451, 465 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). If a party breaches the duty to preserve relevant evidence, the court may impose an appropriate remedy for the spoliation of evidence, such as an award of attorney's fees or costs to the harmed party, exclusion of evidence, striking a party's pleadings, or even dismissing a party's claims. The court also has discretion to craft other remedies it deems appropriate in light of the particular facts of an individual case, including the submission of a spoliation instruction to the jury requiring the jury to presume that the missing evidence would have been unfavorable to the spoliator. See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14, 20–21 (Tex. 2014). Because of the potential available sanctions for spoliation, you should notify your client of the obligation to preserve potentially relevant evidence as soon as it appears reasonably likely that litigation will be forthcoming. In addition, you should work with your client to ensure that reasonable care is taken to preserve such evidence and that any procedures for routine destruction of documents or overwriting or deletion of ESI are suspended while the litigation is pending. Bear in mind that the people to whom you are issuing a litigation hold are usually not lawyers, so they may be unfamiliar with the legal process. Therefore, simplicity and consistency are important considerations when drafting a litigation hold. Try to use plain language and avoid legalese or overly technical descriptions of legal issues. Your goal is to draft the litigation hold so that the average employee can easily determine what actions he or she must take and what types of materials he or she must preserve. Use bold or capital letters to emphasize the employee's preservation obligations and the consequences of failing to comply. For further discussion of litigation hold procedures, see Litigation Hold Implementation (TX). For discussion of discovery sanctions, see Motion for Discovery Sanctions: Making and Opposing the Motion (TX).