Law stated as of 09 Mar 2018 • USA (National/Federal)
This Legal Update highlights resources for in-house lawyers to use when training employees on document retention and litigation holds.
Companies create thousands of written, printed, and electronic records every day. To control this vast amount of data, every company should have a document retention policy that sets out how employees should manage company data from creation through destruction. Over-preservation and under-preservation of documents may present certain legal risks.
When a company anticipates, or becomes a party to, litigation, an investigation, or an audit, it must suspend routine document deletion and issue a litigation hold to preserve all relevant information. Failure to timely issue a litigation hold notice can subject a company to severe sanctions. The litigation hold notice should require:
The organization and its employees to immediately suspend the routine destruction of relevant hard copy (paper) and electronic data, including emails, voicemails, text messages, and social media content.
The preservation of all relevant hard copy documents and electronic data within the employees' control.
Companies may avoid liability by training their employees on the importance of document retention and litigation holds. In-house attorneys should educate employees at all levels about document retention and litigation holds generally, and about each employee's individual roles and responsibilities. To ensure that their employees know how to implement requisite procedures, companies should provide both:
Routine training, whether as part of onboarding or annual training.
Training when the company issues a specific litigation hold.
Describes the litigation hold notice the company issued.
Explains why the company issued a litigation hold.
Sets out the steps employees should take in response to the litigation hold notice.
For more information, Practical Law's Litigation Hold Toolkit offers a suite of resources on litigation holds and document retention, including resources for counsel to train employees about litigation holds, document retention policies, and best practices for ensuring that company records are properly preserved and retained.