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

This CLE course 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.

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.