Q: What is a “litigation hold plan”?
A: It is a comprehensive, pre-arranged plan to preserve records for use in prosecuting, or defending against, claims or lawsuits. Nowadays, records primarily reside as electronically stored information (“ESI”). ESI can exist on a company’s computer network, the networks of vendors/service providers, and on devices, such as smartphones and tablets. Many organizations automatically delete ESI on a pre-determined schedule, such as deleting old emails. If information relevant to a known claim is deleted, courts frequently penalize the party that allowed the deletion, even if it was unintentional. Penalties can include monetary fines and actions that limit an attorney’s ability to defend against or prove claims. For most companies, a thoughtful litigation hold plan—often using vendors that specialize in preserving ESI—is critical.
Originally published in the Portland Business Journal.