Lenor Marquis Segal, Litigation Associate, Ellis & Winters LLP
The fear of terminating a litigation hold prematurely may guide some to keep one in place long after it should have expired. It can be nerve-wracking to determine that a matter is truly “over” – especially one that was anticipated but never really gathered steam. But there is another hidden phenomenon in the e-discovery world: the litigation hold that time forgot.
Envisioning the nightmare of trying to reinstate preservation aside, it can also just plain be hard to say goodbye to a litigation hold. More specifically, it can be difficult to remember to say goodbye to a litigation hold. But letting them go gentle into that good night can be very disruptive for those rule-abiding custodians who are continuing to diligently preserve. Not to mention run up huge and unnecessary storage costs for your client.
And it can have a disastrous backlash if your repeat custodians come to believe through your course of dealing that a litigation hold is simply over whenever they have not heard from counsel in whatever period they each personally consider to be a “long time.” In effect, going forward your custodians will start prematurely terminating litigation holds for you, creating that very crisis you sought to avoid. (This is why periodic reminder notices are also so vital. Remember custodians are just people trying to get their work done.)
For the packrat custodian, not knowing if the hold continues creates uncertainty and anxiety. This type of custodian will over-preserve, even to the detriment of getting their daily work accomplished efficiently.
Meanwhile, if custodians have not been trained to expect regular reminder notices, they may on their own volition decide to terminate the hold on their own personal terms. This is not completely illogical, especially if they have heard water cooler gossip or seen press that would suggest the case is over. A typical custodian is not going to appreciate the nuances of when a litigation is truly over, or the point at which a litigation can no longer arise. For example, they may have heard that their employer has settled with one opponent, not realizing that the case continues on against three other adversaries. Nor is the average custodian calculating when the time to appeal a decision has passed, or when the relevant statutes of limitation and repose have run. Further, many litigations last far longer than the typical custodian may have been led to believe from the rocket dockets of television and movies. Remember that most custodians will not be keeping abreast of the progress of the case or privy to the details. The thought that “this must be over” five, six, or seven years after an incident occurred is rational to a layperson.
The actual termination notice itself can resemble in many ways the prior notices that have gone to custodians, remind the custodians of what was to be preserved and why, and more or less reverse the instructions, with a few extremely crucial caveats. It is not time to break out the shredders and have a ticker-tape parade.
Send a separate partial notice form to any custodians who are under multiple holds, and whose data may cross-apply to various matters. Consider tailoring these notices to each custodian individually. Following up directly with custodians who are subject to multiple holds is highly recommended, so the onus is not entirely on them to puzzle out how to comply adequately.
Also, you must remind all of your custodians that there may be other reasons to retain certain documents, such as their employer’s own document retention policy. Beyond that, there may be legal or regulatory obligations to retain certain items. The idea is to revive normal documentation retention policies, not to throw a bonfire. Provide contact names to your custodians as resources for their inevitable questions. Proactively intervene where issues can be anticipated. Don’t get lazy – by the time you are terminating a litigation hold you know who the “problem children” are and who needs their hand held (or ruler-rapped).
Never forget to loop in the IT department. They are just as human as the custodians themselves, and may be prone to lifting a hold on their own accord with the passage of time, or with a change in personnel, or at the request of someone acting outside the advice of counsel. Their help will also be needed in advising custodians how to resume normal pre-hold business practices.
Likewise, just as they hopefully were at the start of the document inventory process, make sure that any administrative assistants to custodians are informed about and involved in the termination of the hold.
Terminating a litigation hold is like tidying up after a party. It’s anticlimactic, it’s not particularly fun, but it needs to be done or else you will be living in endless clutter. But it also provides a measure of closure, and teaches your custodians to wait for your guidance before cleaning house in the future.