Key Elements of a Litigation Hold Notice

A good legal hold will include the following elements:

  1. Specify that the hold be provided to anyone who can assist with its implementation.

  2. Distribute the hold to IT personnel who can assist with the suspension of ESI deletion and perform backups.

  3. Have each potential custodial certify in writing that they have complied with their preservation obligations and retain these certifications indefinitely.

  4. Have each recipient identify who they are aware of who has had access to relevant ESI and hard copy records.

  5. Instruct the custodian that they are not to try to determine the relevancy of any document to a case, but to take steps to preserve everything.

  6. Documents falling within the scope of the hold that are generated after its distribution should also be preserved.

  7. Warn that copying, moving, or printing any electronic files may result in alterations and subject the client to penalties.

  8. Specify that ESI will include data in proprietary software; user created files; voicemails; and internet usage logs.

  9. Create a full backup of the mailboxes, hard drives, and network drives belonging to key custodians.

  10. SMS and voicemail stored on SIM cards for personal cell phones that may have relevant data should be preserved.

For more information see the form letter included in section 9:25 of the 2021 edition of the Thomson Reuters Electronic Discovery and Records and Information Management Guide.