Lawyer’s letter says don’t destroy ex-worker’s records—now what?

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Q. My department recently received a “litigation hold letter” from an attorney’s office. It instructed us not to delete or destroy any documents belonging to a former employee of ours. That employee has not worked here for nearly three years. As far as we can tell, she is not suing us—she left here on good terms. It appears that this litigation hold letter is tied to a case against another company. While we have a few documents related to this person’s employment, the significant majority of her personnel documents were destroyed through our normal record-retention process. Are we required to comply with this litigation hold letter even though we are not the target of a lawsuit? If so, what can we do about the documents already deleted?

A. Typically, a litigation hold letter has no legally binding effect, provided you are not a party to a particular dispute (or reasonably expect to become a party).

Unless there is a particular reason why your company does not wish to retain possession of this former employee’s records for a period of time, however, the safest approach is simply to hold on to what remaining documents you have, pending the receipt of any formal request. 

It is also advisable to have your general counsel or an outside attorney contact whomever sent the letter and inform him or her of the limited ability of the company to comply with the request. This may prompt an immediate response from the attorney making the litigation hold request. The danger in refusing or ignoring the request is that your company might later be accused by one side or the other of interfering with the lawsuit.

Fortunately, the fact that her other records were destroyed in accordance with your normal document-retention policy before you had any reason to believe that such documents might be needed for a lawsuit should insulate you from most, if not all, claims tied to those documents.

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