What to Do When You Receive a Litigation Hold Letter

If you’ve recently filed for divorce or have been served papers for a divorce, you likely hired an attorney to represent your interests throughout the divorce proceeding. Upon retaining an attorney’s services, you will receive what’s referred to as a “litigation hold letter.” Throughout the course of your divorce, you’ll receive many forms, but this letter in particular is essential for your divorce proceeding.

What Is a Litigation Hold Letter?

A divorce attorney will generally send their clients a litigation hold letter just after you’ve hired them. This document may also be called a “preservation letter” or a “stop destruction request.” Whatever they are called, their purpose is simple: a litigation hold letter states you must preserve all information that may be construed as evidence in the event your case goes to trial. This includes but is not limited to:

  • Written documentation (bank statements, letters, etc.), and
  • Electronically-stored information (ESI): emails, computer activity logs, voicemail, internet files, computer drives, and digital recordings.

When Should I Begin Preserving Evidence?

You should begin preserving all evidence as soon as you receive your litigation hold letter. In the eyes of the law, your obligation begins when you know, or reasonably should have known, that the evidence would have been relevant to litigation. In other words, the evidence in question will likely lead to evidence that would be admissible in court. Your receipt of a litigation hold letter formally states the duty to preserve evidence relevant to your case, if you haven’t received another notice already.

Preserving evidence is simple. To preserve electronically stored information, simply stop deleting relevant emails and don’t wipe your phone or desktop. If you think it may be relevant to the case in any way, leave it on your phone or computer.

Consider keeping all relevant written documentation in a file folder. These may include credit card bills, bank statements, or anything else you think might be relevant. Each time you receive a document that might be relevant, put it in the folder.

What Does the Litigation Hold Letter Involve?

The scope of a litigation hold letter will depend on the specifics of your case and what will likely be an issue during possible litigation. Generally, it applies to all forms of data: calendar entries, emails, cell phone data, software, task lists, and more. In today’s digital world, most forms of documentation are electronic, which is why preserving your ESI is important. This doesn’t necessarily mean you can’t delete spam emails, but you should stop routine destruction of data (like clearing your inbox). Even if your phone breaks, your data may still be recoverable – avoid getting rid of it until your attorney says it’s OK.

When in doubt about the relevance of evidence, save it or ask your attorney. If you dispose of evidence that may be relevant to the case, you may face severe penalties for destruction of evidence. These include liability penalties and possible sanctions. For example, the courts may prevent you from presenting evidence that may have been relevant to your own case. Even worse, they may require that you pay for retrieval of lost information (if stored electronically).

Don’t Ignore Your Litigation Hold Letter

When you receive your litigation hold letter, it’s important that you read it closely and take its terms seriously. Divorce proceedings are stressful enough – the last thing you want to do is incur additional fees or penalties from the court for a failure to preserve evidence. This will only hurt your case in the long run.

If you have any questions about the scope or terminology in your hold letter, your family law attorney will be able to answer them.