January 16th, 2023

What is a Litigation Hold?

Sometimes called a legal hold, a litigation hold is a notice that requires an organization or individual to properly preserve electronically stored information (ESI) and documents that may be relevant to anticipated or pending litigation. At Gross McGinley, LLP, our civil litigation attorneys help clients in Pennsylvania understand why adhering to a litigation hold is so important and how to properly preserve information and evidence.

What Prompts a Litigation Hold?

Typically, a litigation hold is prompted by a preservation letter that informs an individual or company of pending legal action. In some cases, this notice may be issued internally to advise employees to preserve evidence if a company anticipates litigation. It’s important to understand that even without a notice, if a party “reasonably anticipates” litigation they have a duty to preserve any potentially relevant information and evidence. The parties sending the notice or planning to initiate litigation have a duty to preserve data and evidence as well.

What to Do If You Receive a Litigation Hold Notice

If you anticipate litigation or receive written notification of a litigation hold, it’s crucial not to destroy or modify any information that may be needed for discovery in a civil action. This may include:

  • Electronically stored information (ESI), such as spreadsheets, emails, and records
  • Notes, files, and log books
  • Meeting minutes
  • Videos
  • Information on electronic devices such as smartphones, tablets, and computers
  • Any other data or evidence that may be relevant to a case

If your company uses procedures or policies that involve routine deletion of records, emails, or documents, they must be suspended to preserve evidence. If you receive notice or suspect that a lawsuit is imminent, it’s important to contact a civil litigation lawyer right away.

What Is a Credible Threat or Reasonable Anticipation Of Litigation?

There are many scenarios in which the threat of a civil lawsuit may be apparent long before litigation commences. If you receive a formal complaint, demand letter, or subpoena, you should take steps to preserve all relevant data immediately. If an event you suspect could result in litigation occurs, it’s always a good idea to preserve any relevant information or evidence. Even a credible media report that refers to an impending investigation or civil lawsuit can be considered reasonable anticipation of litigation by the court.

When any of these triggers for a legal hold occurs, the court expects the party or organization to take reasonable actions to comply. The experienced civil litigation attorneys at Gross McGinley, LLP, are well-versed in civil law processes. We can determine which information and evidence should be preserved, help you navigate the discovery process, and protect your interests.

What If You Ignore a Litigation Hold Notice?

Failure to properly heed a litigation hold that results in missing evidence is called spoliation. The party who issued the notice can request spoliation sanctions from the court. Disregarding a litigation hold notice or failing to properly implement a litigation hold can lead to sanctions such as monetary fines, responsibility for data recovery costs, adverse jury instructions, negative inferences as to what the missing discovery would have demonstrated, or even a default judgment by the court.

How to Obtain a Litigation Hold

A legal notice or preservation order should always be drafted by an experienced lawyer. A proper litigation hold letter should clearly state the reason for the hold, identify the type of information considered relevant, and prohibit the destruction of all pertinent electronic data, documents, and other important evidence. Our civil litigation attorneys can craft a clear, concise document that ensures all relevant details are included.

Why You Need an Experienced Civil Litigation Attorney

Whether you need to issue an internal litigation hold notice, preserve information because you received a preservation order, or anticipate legal action, seeking the counsel of a seasoned litigation lawyer is a must. The team at Gross McGinley, LLP, works collaboratively to develop practical solutions that protect our clients’ interests. With extensive knowledge of Pennsylvania and federal civil law, our litigation attorneys have experience handling these matters in a wide range of sectors.

Contact a Civil Litigation Attorney

At Gross McGinley, LLP, our forward-thinking, client-first philosophy is at the heart of everything we do for our clients in Pennsylvania. If you need assistance with a litigation hold, contact us online or call us at 610-820-5450 to schedule a consultation.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.