Litigation Holds: Past, Present, and Future Directions

Electronically Stored Information (ESI) first became a serious litigation issue in the late 1990s, and the first attempts to determine best practices did not occur until the early 2000s. As best practices developed, the litigation hold to prevent routine destruction of documents and to preserve documents relevant to litigation came into existence. The duty to preserve ESI is triggered when litigation is reasonably anticipated. All information that relates to potential litigation must be preserved from the time it becomes reasonably apparent that litigation is possible until the expiration of the statute of limitations. If steps are not taken to properly collect, preserve, and produce such information for the discovery phase of litigation, the fear is that justice may be perverted. In addition electronically stored information destroyed negligently or intentionally may well be lost forever and result in the litigant being sanctioned. For the first seven years of the new e-discovery rules, litigants who failed to preserve data received severe sanctions for spoliation of evidence. Recent cases and proposed new rules have reversed the decade-long trend of stringent standards requiring litigation holds leaving the state of the law in flux in spite of the fact that accepted best practices do recommend high standards for litigation holds. This paper reviews this conflict in the law and offers recommendations for future directions.