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Litigation Hold Notice – How do I Locate and Preserve Electronically Stored Information (“ESI”) Relevant to a Legal Dispute?

February 21, 2021

You may receive a litigation hold notice if you or your company have documents related to a legal dispute that is or may become the subject of a lawsuit.

A litigation hold (also known as a legal hold) notice is a written notification directing you or your company to preserve all documents, both paper and electronic, that are potentially relevant to a legal dispute or lawsuit.

As we are living in an increasingly digital world, understanding what electronically stored information (ESI) is and where it is located will be crucial in order to comply with a litigation hold. ESI is defined as any data or documents that are created or stored on electronic media. Disregarding a litigation hold notice, failing to properly preserve data, or deleting data could expose you to claims of spoliation and penalties issued by a court. Luckily, there are a few simple steps that you can take to preserve your data.

READ THE NOTICE CAREFULLY AND CONTACT YOUR ATTORNEY.

Carefully read the litigation hold notice. Identify the party who sent the notice, determine if the notice specifies any particular people who are asked to preserve the data (often referred to as custodians), determine the type of data they are asking you to preserve, determine the location of the data (often referred to as a device), and determine the date ranges for relevant information.

You should contact your attorney to notify them of the ligation hold as soon as possible. Your attorney can advise you of your duty to preserve data and help to identify any additional individuals in your organization who should also receive the notice.

IDENTIFY WHERE YOUR DATA RESIDES.

Do you know where all of your electronic data is located, or do you have an inventory of devices? If you have an IT person or department, reach out and ask for assistance. If you are an individual or do not have an IT department, you should create a log of all the devices where you likely store data and the location of each device

Some examples of typical devices and data sources are:

  • Online email accounts (Office 365, Microsoft Exchange, Gmail, etc.)
  • Cloud document accounts (iCloud, Google Drive, Sharepoint)
  • Physical devices (laptop, tablet, cell phone)
  • Messaging apps (WhatsApp, Slack, Facebook messenger)
  • Removable devices like USB drives or external hard drives
  • Backup servers or archives
  • Social media accounts (Facebook, Instagram, Snapchat)

Provide the list of devices and data sources to your attorney. Your attorney will advise which sources and types of data should be preserved based on the facts of the dispute. If you determine additional devices or locations after the fact, please let your attorney know as soon as possible.

TURN OFF ALL AUTOMATIC DELETION AND TURN ON DATA BACK-UP.

Once data locations have been identified as subject to the litigation hold notice, you should immediately turn off all automatic deletion features on the relevant devices, software, and applications. If you have difficulty navigating these systems enlist help from an IT person, your attorney or contact the software company’s support team.

Some operating systems and applications have a setting that allows you to periodically back up data to a cloud-based location or server on an automatic basis (i.e. iCloud or Google Drive). If you have this capability you should enable automatic data back-ups.

PERIODICALLY CHECK IN ON DATA PRESERVATION.

Set periodic reminders to continue to check on data preservation. While you should have already turned off automatic deletion and turned on automatic device back-ups, it is recommended that you periodically verify that your data is continuously being preserved. This includes continuing to check-in with IT and any additional individuals who also received the litigation hold notice. You should also continue to communicate with your attorney and any other ESI professionals you are working with as this process continues.

While these steps do not encompass the entirety of the preservation process, this process will demonstrate a reasonable effort to preserve data, which will provide protection against claims of spoliation and penalties associated with the deletion of relevant information.

Written by Amy Demanchick, paralegal for Adams Leclair LLP.

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