1. Place Insurance Carriers on Notice
2. Batten Down the Hatches
3. Take Precautions
Sometimes, along with the lawsuit or notice of claim, you will receive a litigation hold letter detailing what specific information needs to be preserved. Do not rely on this. The best practice is to have a form litigation hold notice at the ready, which can be quickly modified to match the details of a particular claim. The attorneys at Prince Lobel can assist you in developing an appropriate form, which needs to be comprehensive, detailed, and explicitly clear, especially to non-lawyers. Be sure to remind all employees and key players that the claim is not to be discussed with anyone not directly involved and that they should direct all inquiries to a single designated person or to General Counsel. It is likewise important to work directly with your IT department and develop, in advance, a method to effectively capture and preserve ESI. Waiting until a lawsuit arrives to figure out your system environment, where information is stored, and how to preserve it can create expensive headaches that are easily avoided with some basic planning.
4. Create A Document Retention Policy
Perhaps one of the most important steps that can be taken in advance of litigation is to create a detailed document retention policy and more importantly, to actually follow it. As a general rule, courts will not sanction a party with an established document retention policy if information is unavailable or destroyed as a result of following that policy. In other words, if your policy is to destroy all electronic communications after five years and critical communications are wiped off of the system as a result of your routine adherence to this policy, this will not result in a sanction. However, reporting that information is not available because you have a five-year document retention policy when, in fact, you do not methodically and permanently destroy the older information, can cause trouble. Instituting and following an appropriate document retention policy also dovetails with the litigation hold issue; it is important to timely issue a hold notice so that key information is not accidentally destroyed as part of regularly following your document retention policy.