This is the sixth installment in a series of articles aimed at helping organizations implement an effective written litigation hold. This article covers modification of the legal hold.
If new information comes to light during the enforcement process, the litigation hold must be modified. Past cases and prominent commentators agree that a single, one-time notice is not enough to meet the legal requirements of a litigation hold. Case law requires the organization to enforce the effectiveness of their litigation holds and to modify the hold if necessary to help preserve records related to the trigger event.
WHY MODIFY THE SCOPE OF THE LEGAL HOLD
During the enforcement process it may become clear that the scope of records being maintained is too broad or too narrow. Examples of scope changing events include where additional record custodians did not receive the original hold notice, additional documents or ESI are requested by the opposing party, or new formats of electronic documents or new data locations are found. Any one of these events could signal a need to modify the scope of the litigation hold. The modified hold must be sent to all recipients of the original hold as well as those newly identified custodians deemed relevant.
The modification process is very easy to understand. It involves adding to the notice an expanding list of what is included within the original hold. It can be expanded by adding categories of records, custodians, locations of records, file locations, third parties with information, or data types. Anything that was not included in the original hold but now considered pertinent should be included.
This broadening process generally carries little risk. Failure to broaden the scope of a litigation hold when necessary, on the other hand, carries a huge risk.
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By: John Isaza and John J. Jablonski