Mastering When To Issue A Litigation Hold Boils Down To A Simple Phrase With An Elusive Meaning

Litigation holds are not just an option in today's e-discovery heavy litigation climate.  The collective body of case law on the subject unambiguously instructs that litigation holds are a critical, early first step that must be activated when the reasonable hint of litigation arises.  Especially in a world where electronically stored information is easily modified, deleted, and corrupted – even unintentionally without any nefarious motive whatsoever – a party's failure to properly institute a litigation hold at the correct time and in the corrected manner could result in crippling sanctions ranging from any one or a combination of the following in a civil action: the dismissal of a claim or granting judgment in favor of a prejudiced party, the suppression of evidence, an adverse inference (referred to as "a spoliation inference"), the imposition of monetary fines, and/or an award of attorneys' fees and costs.  See MOSAID Techs. Inc. v. Samsung Elecs. Co., 348