The duty to preserve evidence arises when a party reasonably anticipates litigation. This might be when a defendant receives “notice of a credible threat of litigation,” such as a demand or cease and desist letter. See Kristin Lohmeyer’s article, Litigation hold: When is Litigation Reasonably Anticipated? http://www.btlg.us/News_and_Press/articles/Litigation%20Hold (last accessed 10.2.18). It may also occur when a potential defendant receives a “litigation hold notice.” For a plaintiff, the duty may arise as soon as the plaintiff discovers it has an actionable injury. The timing of when a duty to preserve evidence arises is not a precise calculation but depends on the facts of each particular case. Regardless of when the duty arises, however, it is a duty that must be addressed. Failure to preserve evidence relevant to reasonably anticipated litigation can lead to sanctions and even the giving of an adverse inference instruction at trials, which would allow the jury to infer that the missing evidence was detrimental to your case.
It is therefore very important that businesses maintain document retention policies and litigation hold policies. Such policies should include, among other things, instructions as to whom litigation hold notices should be sent within the company, who will be the contact person(s) for any questions regarding the litigation hold, how the evidence is to be stored, etc. It should also include an instruction to immediately turn off or disable any automatic deletion or destruction of electronically stored information.
When crafting a litigation hold policy, it is imperative that you think about the culture and practice of your business. How are your files stored – electronic vs. digital? Do your employees conduct business and store documents on their personal devices, such as iPads, laptops, and cell phones? Do they conduct business via text message? All of these issues should be covered by your litigation hold policy.
Author: Elizabeth (Libby) A. Klesmith is a civil litigation and business attorney at Tuesley Hall Konopa, LLP. Her practice areas include real estate, insurance defense, and trademark law. She is licensed to practice in Indiana and Michigan
You can contact Libby by calling 574.232.3538 or email firstname.lastname@example.org