I Think My Client Is About To Be Sued: How To Execute A Proper Litigation Hold

The duty to preserve potentially relevant evidence is an affirmative obligation.  Yes! Attorneys and their clients must take action to ensure preservation of discoverable documents.  The duty to preserve evidence arises when a party knows, or reasonably should know, that the evidence is relevant to pending or future litigation. (Zubulake v. UBS Warburg, 220 F.R.D. 212, 217.)  Simply, a party should preserve evidence when the party is on notice of potential litigation or investigation.

How do you identify when the duty to preserve has been triggered?  While the answer to this question is inherently fact-specific, the determination of whether a party reasonably anticipates litigation should be based on a good faith and reasonable evaluation of the facts and circumstances as they are known at the time. (The Sedona Conference, Commentary on Legal Holds: The Trigger & The Process, 11 Sedona Conf.J. 265, 269 (2010).)  In some cases, the "trigger date" is quite clear.  For