Handling pre-litigation data preservation involves first pausing the destruction of any information relevant to the case, issuing a written legal hold, identifying what needs to be preserved, and determining preservation and collection methods.

Imagine facing a lawsuit and your company's legal team is not allowed to submit pertinent evidence that could improve your case, or you are ordered to pay financial penalties even before presenting your case. According to the Plaintiff Magazine, these are the types of sanctions that a court can impose if you fail to preserve evidence, with the most severe involving the judge terminating the case in favor of the other party.

You can avoid this with effective pre-litigation data preservation, a process that identifies, secures, and locates relevant information when there is an incident, regulatory inquiry, demand letter, or when litigation is reasonably foreseeable. Failure to do so can result in loss of key evidence, adverse inference instructions, and reputational damage.

When Does the Duty to Preserve Arise?

Your duty to preserve evidence arises when there is a credible probability of a lawsuit. Typical triggers include:

• Serious complaints
• Demand letters
• Accidents
• Threatened claims
• Government inquiries

Once an organization anticipates litigation, it must suspend routine document retention, which may involve automatic, pre-scheduled deletion or archiving of records.

First Steps: Pause Destruction and Stabilize the Situation

According to a litigation survey, last year, approximately 80% of U.S companies were involved in at least one lawsuit, while 46% expect legal action against them this year. If this becomes a reality for your organization, legal data preservation is essential, and should involve suspending the auto-deletion of relevant:

• Emails
• Logs
• Backups
• Surveillance footage
• Messaging data

You should also coordinate with your IT department to stop system-level purges and retention jobs tied to likely custodians and systems. During this time, confidentiality and access controls are crucial to preserving evidence without unnecessary exposure.

Issuing a Pre-Litigation Hold/Preservation Letter

Your legal department will also get involved by immediately issuing a data preservation or pre-litigation hold letter to internal custodians - employees or departments with possession, custody, or control of potentially relevant information. The primary purpose of this formal communication is to prevent the destruction or alteration of evidence.

The core elements of an internal legal hold notice are:

• The dispute explanation
• Scope of data
• Clear preservation instructions
• A point of contact

A letter to a defendant or third party may also include categories of evidence and often requests confirmation of these. Updates may follow as the facts of the case evolve.

What Data Needs To Be Preserved?

Understanding what evidence needs to be preserved starts with analyzing the legal complaint to determine the relevant time frame, key personnel, and systems involved. The process includes:

• Collaborating with IT to map data sources
• Gathering input from potential custodians
• Leveraging technology through automated legal hold tools and data collection software

Digital maps for data managing can automate legal holds and enable evidence preservation, while scoping by relevance, time period, and subject matter helps avoid over-preservation and gaps. It is also important to note special categories of evidence that may have very short retention windows. These pre-litigation strategies can help reduce risks and costs.

Methods of Preservation and Collection Planning

Implementing effective data integrity best practices helps create a defensible, auditable process. Two options include a legal hold with in-place preservation and targeted collection of key datasets. The former keeps data in its original location and pauses deletion, while the latter moves specific data to a separate storage location.

Any method used should maintain the chain of custody and integrity of evidence by documenting who collected what, when, and how, using logs and tracking.

Communication, Training, and Monitoring Compliance

Despite legal holds and the use of eDiscovery tools, training of custodians on how to avoid spoliation is crucial. You can ensure they know what to preserve by sending reminders, tracking their acknowledgments, and answering questions. Periodic audits and status checks can help confirm holds are still active and effective and can be adjusted as new custodians or data sources are identified.

Documentation and Demonstrating Good Faith

Documenting the process helps defend preservation efforts against challenges and reduces the risk of sanctions or adverse inference instructions. You should record:

• Trigger events
• Hold issue dates
• Systems and custodians
• Technical steps taken
• Any exceptions or issues

Keeping a centralized log for all preservation-related actions makes this information easily accessible.

When to Modify or Release the Hold

You may need to adjust the scope of preservation as new facts emerge. You can lift a legal hold once there is:

• A final judgment
• Settlement and releases
• A clear decision not to pursue or continue the claim

When this occurs, it is important to carefully transition back to normal retention policies and, where needed, notify custodians of the change in obligations.

Frequently Asked Questions

What Are the 4 Stages of the Litigation Process?

The four stages of the litigation process include the initiation of the lawsuit, information gathering, pre-trial motions and settlements, and trial and post-trial. Many lawsuits also involve a pre-litigation phase, where an initial investigation is conducted.

What Is the Stage Before Litigation?

The stage before litigation is often referred to as the pre-litigation or pre-action stage, during which a formal letter of claim is sent, and mediation and negotiation may take place to try to resolve the dispute. There is also the gathering of evidence and often settlement discussions before the formal filing of the lawsuit to avoid court costs.

What Are Common Litigation Mistakes?

Common litigation mistakes by attorneys often stem from administrative failures, inadequate preparation, and poor communication, leading to malpractice claims and dismissed cases. The most frequent errors include missing strict filing deadlines, improper evidence and discovery management, and overlooking conflicts of interest.

Protecting Case Strength and Credibility

Early, organized pre-litigation data preservation can help protect case strength and credibility while reducing costs and disruptions later. Once you recognize the trigger, the process should involve stopping evidence destruction, scoping data and custodians, and issuing holds or letters. You will also need to monitor, document, and revisit the scope throughout the process.

Onna can help you achieve this by effectively collecting, curating, and managing your data. We can also design a customized data collection solution based on your specific needs. Schedule a demo to start reducing your legal risks and costs.