Here’s why the litigation hold reminder is just as important as the original hold notice.
What is a litigation hold reminder?
Litigation hold reminders are messages routinely sent to custodians on litigation hold to remind them of their continuing obligation to preserve data relevant to the matter.
Why do I need a litigation hold reminder?
It’s not unusual for years to go by between the start and the final disposition of a matter. Given that, Courts have set the expectation that parties will routinely remind custodians of their continuing preservation obligations. Usually, parties also have an obligation to preserve new relevant or responsive data. Any new documents, emails and other data created must be preserved as well. A proper litigation hold reminder notice to your custodians should cover this requirement.
Am I legally required to send out litigation hold reminders?
While there is no written state or federal law or regulation that specifically defines and requires written legal hold notices or reminders, there is substantial case law that outlines expectations and best practices, most of which requires that preservation methods continue throughout the course of a matter. In short, parties have a legal obligation to ensure that all potential responsive and relevant data is identified, collected and produced in a given matter. To fulfill this obligation, a party must take steps, one of which is issuing and maintaining effective litigation hold instructions. This is especially important in longer-term or particularly contentious cases. In the end, diligent issuance of legal hold notices and effective, routine reminders can go a long way toward preventing sanctions, spoliation claims, and fines.
Make sure to include litigation hold reminders in your company’s Preservation Policy and eDiscovery Runbook. (Need help developing or updating either of those? We can help.)
Who receives a litigation hold reminder?
The reminder goes out to each custodian who received a litigation hold notice at any time during the course of the legal matter.
It’s not unusual for people to change roles within an organization or leave it altogether. If a custodian’s original role was the primary reason they were on hold, then their replacement in the role also needs to be informed of any ongoing duties to preserve information. People may move on, but their data still needs to be preserved if the litigation hold is still in place. Remember to add any new employees to the recipient list for your reminder notices where applicable and to take steps to preserve a custodian’s data upon exit.
How often should a litigation hold reminder go out?
We recommend quarterly or semi-annually; some clients send reminders annually, others monthly.
What content should a litigation hold reminder include?
The litigation hold reminder should cover:
- basic matter information for context;
- clear instruction that preservation obligations continue;
- a link or instructions to access/request the original litigation hold for reference; and
- contact information for a person who can answer any questions.
What makes an effective litigation hold reminder?
- Keep your reminders brief but informative. The litigation hold reminder simply needs to tell the recipient WHY and OF WHAT they’re being reminded.
- Format litigation hold reminders to look as similar to the original litigation hold notice as possible. If your notices appear consistent and custodians recognize them right away, they will know the drill and be more apt to respond quickly and give you better results.
Automated legal hold software can help you track custodians who receive notices, create the reminders, issue reminders automatically, view audit history on all activities related to a given hold, and remind custodians of all their active legal holds in a single reminder.
Download our litigation hold reminder template today and get a BONUS TEMPLATE for the Litigation Hold Acknowledgment Reminder. The Acknowledgment Reminder (often called a “Nag Notice”) is the email sent to custodians reminding them to acknowledge the initial legal hold notice and confirm that they understand their preservation obligations. In a perfect world, custodians acknowledge this immediately after receiving the original hold notice. But for the stragglers, it’s appropriate to continuously send reminders manually via email or through an automated system.
BIA has two decades of practice developing litigation hold software and tools that help our corporate and law firm clients navigate litigation. Adding to our litigation hold notice and custodian questionnaire templates, we’re excited to share our Litigation Hold Reminder Template and Litigation Hold Acknowledgment Reminder Template. We invite you to put them to use in your next case and, as always, reach out to our experts if you need help.