Litigation Hold Memorandum (Federal)

Form provided by Jim Wagstaffe and the Wagstaffe group.

This memorandum (also called a litigation hold notice or simply a litigation hold) notifies a client’s relevant employees of their duty to preserve and ensures that the client meets its legal responsibilities.

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); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). 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].

This memorandum 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.

MEMORANDUM

To: [relevant and key employees, representatives, and management]

From: [outside or in-house counsel name]

Date: [date]

Subject: Litigation Hold Notice Regarding [brief description of dispute or adversary name]

This Memorandum is to inform you about potential litigation in connection with [brief description, such as “our 2017 contract negotiations with XYZ Corporation”] (the “Dispute”) and your legal obligation to preserve documents related in any way to the Dispute. We are required by law to preserve all documents related to the Dispute, and you have been identified as a person who may possess relevant documents and/or data.

You are directed to preserve documents and information relating to the Dispute as provided in this Memorandum. These obligations will remain in effect until you receive a subsequent written notice that this Litigation Hold has been updated, modified, or released. Failure to preserve documents and information relating to the Dispute may expose [client name] (the “Company”) to sanctions and/or legal liability. Accordingly, if you have any questions or concerns about the obligation to preserve documents and information, please contact [in-house counsel name].

1. Important Definitions

Federal law requires preservation of all documents and data relating to the Dispute from all sources. Documents and data should be interpreted broadly and is not limited to hard copy documents. It also includes audio recordings, videotape, email, instant messages, word processing documents, spreadsheets, databases, calendars, telephone logs, internet usage files, and all other electronic information created, received, and/or maintained by the Company on its computer systems. Sources include all hard copy and electronic files, computer hard drives, removable media (e.g., CDs and DVDs), laptops, iPhones or other smart phones, backup tapes, backup media, and anywhere else hard copy or electronic data is or could be stored. Note that this list is not exhaustive and is provided only by way of example. If you use a home computer or personal laptop to perform work on behalf of the Company, you also must preserve any relevant information from that computer. If you use a personal email account to send work-related emails, you must preserve those emails.

2. What You Must Preserve

Documents and data you must preserve and retain include those that mention or discuss any of the following subjects:

• [category of documents and/or data, such as “Communications with any employees of XYZ Corporation regarding the negotiation of our 2017 contract”]
• [continue as necessary for each category of documents and/or data or specific documents]

There may be additional categories of documents relevant to the Dispute. If you are unsure of the relevance of a document or category of documents, preserve it and contact [in-house counsel name] for more information.

DO NOT DISCARD ANY DOCUMENTS (INCLUDING ELECTRONIC DOCUMENTS) RELATING TO ANY OF THESE TOPICS. This request applies to documents currently in your possession, as well as those you may create or receive after the date of this Memorandum. Your only obligation at this time is to identify and preserve relevant documents as they are kept in the ordinary course of business. You need not sort, summarize, or otherwise index these documents. Do not mark up or edit any documents, and do not create any new documents in response to this Memorandum.

3. Special Considerations for the Preservation of Electronically Stored Information (ESI)

Electronically stored information (ESI) likely will be an important source of discovery and/or evidence in this matter. You must take every reasonable step to preserve relevant ESI until further notice.

The Company must preserve all ESI related to the Dispute and suspend the deletion, overwriting, or any other possible destruction of relevant electronic documents and data. Automatic data-destruction protocols also must be suspended and failure to do so could result in sanctions by the court. These obligations apply to all relevant ESI, no matter when it was created. We have a continuing obligation to preserve all newly-created ESI until further notice.

Typically, such ESI may be located in or on one or more of the following:

• Computer(s), meaning any programmable machine, including, but not limited to, network servers, desktops, laptops, home and office computers, mainframes, personal digital assistants (such as Blackberry, iPhone, and other handheld computing devices), and mobile phones
• Hard drive(s) or hard disks, meaning the primary hardware that a computer uses to store information
• Network(s), meaning a group of one or more computer systems connected to enable people to share information and equipment (e.g., local area network(s), wide area network(s), home area network(s), metropolitan area network(s), etc.)
• Other storage device(s) or media, meaning any component that is used to store data
• Magnetic storage media, including but not limited to, hard drives, stick drives, Zip drives, and floppy disks
• Optical storage media, including but not limited to, CD-ROMs and DVD-ROMs
• Voicemail and/or voice messaging systems
• Archive(s) and/or backup tapes, meaning long-term storage area(s) for data and hard copy documents

4. Suspension of Document Destruction Policies

Recipients of this Memorandum must suspend any routine business practice likely to alter or destroy the documents and information described herein until further notice. Such business practices may include, but are not limited to, shredding, disposal, or other destruction of documents; server backup tape rotation or overwriting; electronic data deletion; scheduled destruction of backup media; re-imaging of drives; drive hardware exchanges; sale, gift, or destruction of computer systems; disk defragmentation; and/or other disk maintenance routines. You should not resume these routine business practices until further written notice.

5. Instructions for IT Personnel

IT personnel who receive this Memorandum must, until further written notice:

• Work with the employees identified in this Memorandum to secure and preserve relevant ESI
• Disable automatic destruction of all ESI, including backup tapes
• Properly preserve evidence when notified of a relevant employee’s anticipated resignation and/or termination

[Name of senior IT official] will lead these document preservation efforts. Please direct any questions you have on these issues to [him or her].

6. Obligations of Third Parties

Our legal obligation to preserve information extends to any documents or data within the Company’s control. If you are working with third-party vendors or other entities that may have documents or data covered by this Memorandum, please notify [in-house counsel name] immediately so that we may determine whether to inform these third parties of our document preservation obligations.

7. Acknowledgment of Receipt of this Memorandum

Each recipient of this Memorandum must indicate in writing that he or she has received it and understands his or her obligations hereunder. To that end, please sign, date, and return the attached Acknowledgement to [outside or in-house counsel name] at [outside or in-house counsel email address].

If you have any questions or concerns regarding this request, please do not hesitate to contact [outside or in-house counsel name] at [outside or in-house email and phone number].

Thank you for your cooperation and prompt attention to this matter.

Very truly yours,
[outside or in-house counsel name]

ACKNOWLEDGMENT

I,______________, hereby acknowledge that I received the attached Litigation Hold Memorandum on_______________. I further acknowledge that I have read the Memorandum and understand my legal obligations as described in the Memorandum.

________________
Name:

Form provided by Jim Wagstaffe and the Wagstaffe group

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