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Practice Tip: The Fine Art of Safely Lifting Litigation Holds

By Sarah L. Olson
March 30, 2009

Over the last five years, companies and counsel have been sensitized to the dangers of mishandling the duty to preserve documents, and particularly electronic documents, relevant to pending or reasonably anticipated litigation. Examples abound of penalties assessed ' whether monetary or evidentiary ' for failures to impose, monitor and enforce appropriate litigation holds. However, far less attention has been paid to the other half of the equation, the appropriate lifting of an existing litigation hold. To date, no case involving the lifting of a litigation hold has reached the appellate level; a few trial court decisions treat the subject tangentially. Though the topic gets a passing mention in legal periodicals from time to time, it is generally assumed that lifting a hold is a straightforward technical process. That assumption can be dangerously wrong.

Lifting a litigation hold requires legal analysis at least as substantial as the imposition of such a hold in the first place. Given that the end of a litigation is often characterized by multiple antagonisms, tense negotiations, the potential for third-party recrimination, and hostile miscommunication, lifting a hold on discoverable documents may actually be even more perilous and complex than imposing one. This article explores some of the legal and practical considerations that go into lifting a litigation hold, while minimizing the risk of the activity.

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