Anyone who works with me knows that I place a lot of emphasis on litigation hold letters. In the most general sense, litigation hold instructions are invaluable because they cause everyone involved to pause and think about what they are doing with relevant information. The primary purpose of litigation hold instructions is to make sure that evidence, whether it be a hard-copy document or an e-mail, is preserved. Litigation hold instructions can be used defensively (e.g., sending hold instructions to your team after a you have been altered to a potential for litigation) or offensively (e.g., sending instructions to your opponent to make sure that they do not despoil any evidence).
It will be interesting to see how the significance of litigation hold instructions evolves in BP Oil Spill litigation, particularly if reports about BP’s alleged knowledge of potential safety issues are true. On June 8, 2010 Newsweek reported that documents about BP’s internal safety investigations, leaked to ProPublica, show an alleged pattern of negligence and a culture which purportedly silenced whistleblowers. If these allegations are true, it is arguable that BP had a duty to preserve evidence when it first learned of any potential problems with Deep Horizon, and long before the April 20, 2010 explosion. Thus, even before any court opines on whether BP issued proper litigation hold instructions, there is an important lesson to be remembered by all employers – your preservation duties kick in before a complaint is filed.
Electronic discovery experts already predict that litigation associated with the BP Oil Spill will become the largest electronic discovery event in history, and I agree. The sheer volume of electronically stored information, combined with accusations of negligence, the extensive damage suffered by the Gulf Coast region, and the fact that the explosion on the Deep Horizon killed eleven people, has created the perfect e-discovery storm. No matter the circumstances, however, the lesson remains the same. Consider your litigation hold duties early and often, and before a complaint is filed.