When someone files a lawsuit, or reasonably anticipates one, many courts hold that a duty arises at that time to preserve all information that might be relevant to the dispute. Particularly when a business or other organization is involved, compliance can be a challenge. Certain practices and habits, such as the regular deletion of electronic mail and other computer based data, even by individual employees, must be immediately stopped and compliance monitored.
Florida’s federal courts have required at least since August 21, 2007, that parties anticipating litigation implement what is called a “litigation hold” to preserve evidence, especially where electronically stored information or ESI, may be involved. A litigation hold is usually a written set of instructions to key employees of an organization to preserve all information, including ESI, that might be relevant to the suit.
On April 5, 2011, U.S. Magistrate Judge Jonathan Goodman of the U.S. District Court for the Southern District of Florida sought to articulate the standards applicable in the 11th Circuit to litigation holds. His analysis in Point Blank Solutions, Inc. v. Toyobo America, Inc. offers an excellent overview. Selected quotes from his opinion are presented below.
When
The duty to preserve evidence arises when a party reasonably anticipates litigation. Once a party reasonably anticipates litigation, then it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.
What
Parties are well advised to retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches. The relevant documents which must be retained and preserved means relevance, for purposes of discovery, which is an extremely broad topic.
How
A litigation hold must be implemented—and affirmative steps must be taken to monitor compliance so that all sources of discoverable information are identified and searched. After that, the duty to preserve persists through the discovery process and litigants must ensure that all potentially relevant evidence is retained.
Who
The preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction. In a business setting, the managers, in turn, are responsible for conveying to the employees the requirements for preserving evidence.
Florida’s state courts have not yet expressed a requirement for litigation holds like the federal courts have. Nevertheless, a failure to preserve evidence when there is a possibility of a civil action can lead to tort liability under Florida law. Therefore, implementing a litigation hold in every case where litigation is likely is a good practice.
Author(s): Eric P. Hockman
