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Record Retention

When litigation is pending or foreseeable, create a litigation hold memorandum

By Matthew S. Marrone, Esq., Daniel Strick | Updated on January 31, 2012

Insurance brokers cannot always “avoid E&O,” and often are faced with the separate but related decision of how best to “defend E&O.” This process typically begins as soon as the broker reasonably believes an E&O claim might be asserted. This month we address the importance of litigation hold memoranda and retaining records, both electronic and paper, when litigation is pending or foreseeable.

Parties to a lawsuit are under a duty to preserve what they anticipate to be requested in a litigation. Failure to do so could lead to severe penalties against the offending party. The duty to preserve begins when the party in possession of the evidence knows litigation by the party seeking the evidence is pending or probable, and the party in possession of the evidence can foresee the harm or prejudice that would be caused to the party seeking the evidence if the evidence were to be discarded.

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