What To Do If You Get A Litigation Hold Notice?

Run !  Kidding.  First thing you should do is contact counsel.  A litigation hold notice is something new in Florida.  It basically says, hey, I might sue you so don’t press that delete button on your computer.  The notice can’t say keep everything indefinitely; it has to be useful and as specific as is reasonably possible.  The purpose is to put people and businesses on notice that data, which is very easy to delete or destroy, might be needed in a dispute.  The downside to ignoring such notice can be very severe.

Litigation holds developed in the past decade or so in Federal practice as more businesses transitioned to electronic data from paper.  Because electronic data is capable of destruction or deletion, the legal industry developed a response that fairly placed parties on notice to keep certain data.  That, of course, doesn’t prevent the recipient of the notice from asking the provider to pay for the storage or to even be more specific in terms of what is to be kept.

By their nature, lawsuits are adversarial processes, but in the world of electronic discovery or “e-discovery” as it has come to be known, professional cooperation among lawyers is mandatory.  Thus, responding to a notice and implimenting and managing a litigation hold is best left to qualified and experienced counsel who can navigate your business through the hazards on the road of e-discovery.

But, what happens if you disregard a litigation hold notice or don’t properly impliment a hold?  The other side screams spoliation as it is called and the Judge has to hold a hearing or even series of hearings to evaluate whether spoliation actually occurred, the impact of it, and an appropriate sanction as a response.  Sanctions for intentional spoliation are naturally more severe that those for inadvertent destruction.  Sanctions are not limited and can range from adverse instructions to a jury telling them at the beginning of the case what one party did, to monetary punishment, to making the wrongdoer pay for recovery of the data, to restricting the wrongdoer’s ability to argue and put on evidence, to defaulting the offending party in certain circumstances.  Basically, failure to act on a litigation hold can result in lots of costs and fees and some form of punishment that can all be avoided by speaking to counsel early in the process to assess the notice and define responsive actions.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery in CLE courses.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com     Tel: (561) 316-7905.

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