Nonparty Litigation Holds: Clear to Implement. Complex to Lift.

Authors

Alexis Bianco-Burrill

Abstract

Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents beyond their automatic retention policy will keep a legal hold in place for a prolonged period of time. Consequently, the nonparty has no choice but to manage increased expenses, wasted time, and prolonged security risks. Therefore, nonparties subject to this requirement are forced to withstand an unnecessary burden, despite not being a party to the case in question. While the Sedona Conference has attempted to mitigate this burden, this note advocates for the Judicial Conference, which advocates for amendments to the Federal Rules of Procedure, to address this problem directly. More specifically, this note proposes the burden be entirely shifted to the requesting party to outline an explicit period of time for which a nonparty is required to preserve its documents.

Recommended Citation

Alexis Bianco-Burrill, Nonparty Litigation Holds: Clear to Implement. Complex to Lift., 89 Brook. L. Rev. 969 (2024).
Available at: https://brooklynworks.brooklaw.edu/blr/vol89/iss3/8