Litigation Holds in Class Actions: Triggering Events, Scope of Hold, Termination, Forms

Avoiding Costly Missteps that Empower the Other Side

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, February 5, 2020

Recorded event now available

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Program Materials

This CLE webinar will help class action lawyers avoid empowering their opponents in litigation by failing to follow the law on litigation holds. Unless counsel is conversant in when the hold obligation begins, who and what is subject to the hold, and when the hold obligation ends, the client is at the opposition's mercy on this wholly non-substantive issue.

Description

It is simple to say that there is a litigation hold obligation. It is harder to describe and comply with that obligation. Failure to do so gives up valuable ground in class actions. Counsel must arm themselves with the knowledge and tools necessary to comply with the litigation hold requirement.

A duty to preserve evidence arises when a party reasonably anticipates litigation. Although sometimes that point in time is clear (say, an explosion), more often, it is nebulous. Further, the party must determine what to hold and how to manage in the context of retention/disposal policies. Of course, once a party receives a notice letter or a lawsuit, clarity ensues.

Unlike in single-party litigation, where a company can isolate communications with its opponent and quickly identify those who dealt with the opponent, class action cases present all-encompassing obligations. A hold must only be "reasonable," but several factors determine what is reasonable. The breadth of the inquiry as to reasonability increases with the scope of the dispute.

Listen as this experienced panel of class action attorneys explores the challenges of litigation holds. The panel will discuss the starting point of such holds, the scope of those holds, and the oft-ignored issue of the end of the holds. The panel will also discuss form documents that counsel should have in its arsenal to address the issue.

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Outline

  1. Starting point of a litigation hold
    1. Reasonable anticipation of litgation
    2. Notice from an adverse party
    3. Commencement of litigation
  2. Scope of hold
    1. Self-started hold vs. demanded hold
    2. Relevancy
    3. Balancing and proportionality
    4. Ability to demand others to hold
  3. Consequences of failure
    1. Failure to hold at all
    2. Ineffective hold
  4. Termination of hold
    1. Anticipation hold not followed by litigation
    2. When does litigation "end"?

Benefits

This panel will review these and other important and complex matters:

  • Aside from notice, or actual litigation, is there a specific time a hold must start?
  • What judgment and discretion can a party exercise before being guided by a court as to the scope of a hold?
  • What are the real dangers of improper or ineffective holds?
  • When can a party stop spending money and time on a hold?

Faculty

Levitt, Melinda
Melinda F. Levitt

Partner
Foley & Lardner

Ms. Levitt’s practice focuses on complex commercial litigation, including the areas of antitrust, securities,...  |  Read More

Solomon, Ronni
Ronni D. Solomon

Partner
King & Spalding

Ms. Solomon co-leads the firm’s E-Discovery practice and focuses exclusively on e-discovery issues. She has...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

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