What should you do if you receive a litigation hold notice
A litigation hold notice or litigation hold letter basically says I might sue you so please do not delete certain data. If you get one of these, the best response is to first contact your business attorney. The notice should be as specific as is reasonably possible. The purpose is to put a business on notice that the data identified in the letter might be needed in a dispute. Beware that ignoring the notice can be problematic.
Where did litigation holds come from
Litigation holds first developed in Federal practice. Over time businesses have transitioned from paper to electronically stored information or ESI. This ESI can easily be destroyed or deleted. So the legal industry engineered the litigation hold notice to alert people to keep certain data. The notice does not prevent the recipient from asking the provider to be more specific or to pay for storage of the ESI.
What is eDiscovery a.k.a. electronic discovery
Discovery is the general process in a civil lawsuit by which the parties obtain and exchange information. eDiscovery or electronic discovery is the discovery process with special software as it applies to ESI. Lawsuits are adversarial but eDiscovery requires cooperation among lawyers to work. Therefore responding to a litigation hold notice and putting a litigation hold in place should be done with the help of an experienced business lawyer. Such a person can navigate your business through the potential hazards in eDiscovery.
What can happen if you disregard a litigation hold notice
If you disregard a litigation hold notice or fail to properly implement a litigation hold, the party issuing the notice may seek spoliation sanctions. The judge must then evaluate in a hearing or series of hearings whether spoliation occurred, its impact, and craft an appropriate sanction in response.
Our judges in Florida can look to federal eDiscovery cases in the absence of state cases. After recent amendments, the Florida State Court Rules are closer than ever to their federal counterparts on eDiscovery. As a consequence there is a four-part test that guides judges in deciding a spoliation motion.
Spoliation sanctions can range from adverse jury instructions to monetary punishment and can include shifting data recovery costs to the wrongdoer. A judge can also restrict the ability of the guilty party to argue and put on evidence. The judge can even default the offending party in certain circumstances.
Our judges in Florida can look to federal eDiscovery cases in the absence of state cases. After recent amendments, the Florida State Court Rules are closer than ever to their federal counterparts on eDiscovery. As a consequence there is a four-part test that guides judges in deciding a spoliation motion.
Spoliation sanctions can range from adverse jury instructions to monetary punishment and can include shifting data recovery costs to the wrongdoer. A judge can also restrict the ability of the guilty party to argue and put on evidence. The judge can even default the offending party in certain circumstances.
Conclusions on litigation holds in Florida
Litigation hold notices developed to efficiently alert businesses to preserve certain data that is understood to be relevant to a dispute. They promote the cooperation needed to make eDiscovery run smoothly in a lawsuit. Upon receipt of such notice your business should consult with your corporate lawyer as soon as possible because it may be necessary to institute and document a formal hold on certain ESI. Failure to act can expose your business to spoliation sanctions. Any business should avoid those sanctions.
Written by Board Certified business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
