As e-discovery matures, it is typically no longer a surprise when outside counsel raises the issue of spoliation and the need to draft and issue a legal hold when a company gets sued. But what counsel may not always appreciate is that it is not just the filing of a complaint that can trigger the need to issue a legal hold—instead, it is whenever litigation is reasonably anticipated. So what does this mean in practice? And are there best practices in-house counsel can implement to ensure that potentially relevant evidence is preserved and to avoid the risk of spoliation claims down the road? This article aims to answer these questions.

When Does the Duty to Preserve Arise?

Many practitioners use the term “litigation hold,” but the term “legal hold” may be a better choice because it helps drive home the point that the duty to preserve potentially relevant evidence sometimes arises much earlier than the date that a complaint and summons are served.

If you read enough e-discovery opinions, you will see that courts articulate the trigger for preservation in a number of different ways, but the standard almost always comes down to when litigation is “reasonably anticipated,” rather than merely possible, as in Zubulake v. UBS Warburg, 229 F.R.D. 422, 431 (S.D.N.Y. 2004). But, of course, the devil is in the details, and determining exactly when a party should reasonably anticipate litigation is often highly fact-intensive.

With that said, there are several situations when the duty to preserve is almost certainly triggered, such as: