cbrock84 Disputes and legal holds
The decisions that determine how a dispute goes are made in the first week, usually by people who do not know a dispute has started.
This structures the operational response. Procedural obligations and their deadlines vary by jurisdiction and forum — get counsel engaged early, and let them drive strategy.
Preservation attaches earlier than most people expect
The obligation to preserve begins when litigation is reasonably anticipated — which can be a demand letter, a threat made in a meeting, a regulator's inquiry, or an internal complaint serious enough that a claim is foreseeable. It does not wait for a filing.
Destruction after that point is treated far more seriously than the underlying dispute. Routine automatic deletion continuing through a hold is the common version, and "it was our normal policy" is not the defense people assume.
Issue the hold in writing, and make it reach the systems
A hold has two halves and organizations routinely do only the first.
- Notify the people. Written, naming the matter in general terms, describing the categories of material to preserve, instructing recipients not to delete and not to discuss, and requiring acknowledgment. Identify custodians by what they touched, not by seniority.
- Suspend the machinery. Automatic deletion runs on schedules nobody remembers setting: mail retention, chat history expiry, ticket archival, log rotation, backup rotation, CRM purges, device wipe on offboarding. Each needs an explicit suspension for the affected scope.
The systems half is where holds fail, because the notice goes out and everyone assumes it was sufficient. Keep a list of every system with an automatic deletion schedule so that the question is answerable in an afternoon rather than a fortnight.
Maintain the hold as a live thing
Re-notify periodically, add custodians as the matter develops, and cover departures — an employee leaving under a hold means their mailbox, files and device do not follow the standard offboarding path. Release the hold in writing when counsel says so, and only then.
Privilege is easy to lose and cannot be recovered
Privilege protects legal advice, not facts and not business decisions dressed as legal ones. Copying a lawyer onto a business discussion does not make it privileged; forwarding privileged advice widely inside the organization can waive it.
Where an investigation is being run for the purpose of legal advice, structure it that way from the start — directed by counsel, marked, and circulated narrowly. Retrofitting privilege afterward generally fails.
Manage counsel and cost deliberately
Agree scope, staffing, rates and a budget with checkpoints before work starts, and require early written assessment of the realistic range of outcomes. Discovery is usually the largest cost and the most controllable one — narrowing custodians and date ranges early matters more than any hourly rate negotiation.
Decide about settlement on expected cost, not on principle
Compare the realistic range of outcomes, weighted, against the full cost of continuing: fees, management time, disruption, disclosure risk, and the effect on other matters. Management time is the cost most consistently omitted and is often the largest.
Consider what a settlement signals to other potential claimants, and get releases that are broad enough to actually end it.
Never
- Wait for a filing before preserving.
- Send a hold notice without suspending the automatic deletion it depends on.
- Offboard someone under a hold through the standard process.
- Assume copying counsel on a message makes it privileged.