How to Draft and Communicate an Effective Legal Hold Notice

The need to draft and communicate an effective legal hold notice raises questions about what information should be provided, who should provide it, and how to ensure the deadline is being met. These notices are critical for preserving all relevant information for litigation or regulatory investigations. As acknowledged in an article by Mitratech, errors in drafting or communicating a legal hold notice can result in data loss, legal penalties, and other adverse outcomes. 

A notice is issued when an organization faces litigation or a government investigation. It explains employees’ responsibilities in preserving evidence and ensures that it is available for the discovery process. Compliance is essential for avoiding severe penalties.

When drafting your legal hold notice, use clear and concise language, and include these elements:

• Identifying the case or investigation, including the case name, number, and a brief description.
• Describing the types of information to be preserved, that is, documents, emails, electronic records, and physical files.
• Identifying the custodians responsible for preserving the information, such as employees, departments, or external partners.
• Providing detailed instructions on preserving the required information and ensuring there are no deletions or alterations.
• Stating the deadline for compliance with the notice to ensure timely action.
• Providing contact information for the custodians managing the legal hold.
• Stressing possible legal and organizational consequences of non-compliance.

Tailor instructions for different custodians, make sure there is consistency across communications, and have legal counsel review the notice: 

• Send the initial notification to all intended recipients using multiple channels.
• Ensure that training sessions are set up so employees know their responsibilities.
• Provide regular follow-ups and periodic reminders to help maintain awareness and verify compliance.
• Keep records of all communications with respect to the legal hold notice to demonstrate compliance.
• Leverage technology for increased efficiency and reliability.

Following best practices to draft and communicate an effective legal hold notice is the basis of a defensible eDiscovery process, ensuring that legal obligations are met and the pitfalls of non-compliance are avoided.