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Legal Holds: Get Them in Writing

By Dennis R. Kiker

In-house counsel and their outside counterparts routinely struggle with the problem of when and how to issue legal hold notices. When is litigation reasonably anticipated? Who should get the notice? Should the notice be tailored to the case or based on a rigid template? One question that should have a consistent answer is whether the notice should be in writing.

In a recent case in the U.S. District Court for the Eastern District of New York, the judge held that “the failure to implement a litigation hold at the outset of litigation amounts to gross negligence,” necessitating a punitive monetary sanction. Acorn v. Cty. of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). This is tough language, perhaps encouraged because the failure actually resulted in the loss of potentially relevant information. In Acorn, the plaintiffs sought discovery about the County's “document retention practices and its production of documents in this case,” purportedly due to alleged deficiencies in the County's discovery responses. Id. at *1.

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