This is the fifth installment in a series of articles aimed at helping organizations implement an effective written litigation hold. This article covers enforcing the legal hold and examining its effectiveness in the organization.
We use the term "enforcement" for this step, because it more accurately describes the follow-up necessary to discharge an organization’s preservation duty. To be clear, a duty of reasonableness has developed over the last few years requiring organizations to take affirmative steps to prevent the destruction of relevant ESI and other documents. A short list of affirmative steps can be gleaned by reviewing the laundry list of shortcomings of the plaintiffs’ preservation efforts in The Pension Committee v. Banc of America, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010, as amended Jan. 15, 2010). Simply looking for the latest or greatest list of best practices for enforcing litigation holds misses the point. It is more helpful to understand just why enforcement of litigation holds has developed as a duty in U.S. federal courts.
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