The Hold You Must Write

Question 13: The Hold You Must Write

Your role

You are litigation counsel to Trellick Automation. This is a drafting assignment. The general counsel needs two documents from you today, in final form, ready to send.

Governing law

1. A duty to preserve arises when litigation is reasonably anticipated.

2. A party must take reasonable, proportional steps to preserve potentially relevant information in its possession, custody, or control, including information held by employees on personal devices used for work and by third parties acting for the company.

3. Relying on interested custodians to select what to keep is not a reasonable step. Auto-deletion systems reasonably likely to destroy relevant information must be suspended or their content collected.

4. Sanctions for lost electronically stored information depend on whether reasonable steps were taken, whether the information can be replaced, prejudice, and, for the most severe sanctions, intent to deprive.

5. A litigation hold should identify the matter, define preserved subject matter and date ranges, identify sources, prohibit deletion and routine destruction, require acknowledgment, and provide a point of contact. It should not argue the merits or admit liability.

Facts

Yesterday Trellick received a demand letter from Ridgeline Foods threatening suit over allegedly defective proximity sensors on packaging equipment, citing two line-stoppage incidents in the past 90 days and claiming $3.4 million.

Facts gathered this morning:

• The sensor firmware team is led by VP of Engineering Sara Okafor. Sara conducts substantial work discussion on a personal-phone messaging app configured to auto-delete messages after one week. Her team of six uses the same app in a group thread.
• Two independent-contractor firmware engineers, working through Fenwick Embedded LLC, have access to Trellick source repositories and communicate with the team by email and the same messaging app.
• Company Slack deletes all messages after 45 days under the current workspace plan.
• Engineering work is tracked in Jira and a self-hosted Git service. Test-bench telemetry from sensor validation rigs overwrites on a 21-day rolling basis.
• The QA lead on the sensor line, Marcus Bell, resigned last week. His laptop is scheduled for standard reimaging and reissue this Friday. His email account is scheduled for deletion 30 days after departure.
• A shared-drive "spring cleanup" purging folders older than 24 months is scheduled to run company-wide this weekend.
• Sales and support communications with Ridgeline live in the CRM system and a support-ticket platform hosted by an outside vendor that retains closed-ticket attachments for 12 months.
• Relevant time period, per the demand letter: sensor model VX-9, developed over roughly the past three years.

Assignment

Draft both documents, complete and ready to send:

1. The litigation hold notice to be sent to identified custodians, no more than 600 words. It must correctly identify who receives it, define the preserved subject matter and date range, cover every at-risk source in the facts including personal devices, contractor materials, and auto-deleting systems, require acknowledgment, and comply with the supplied rules, including the rule against custodian self-selection, without arguing the merits or creating admissions.

2. A preservation action memo to the general counsel, no more than 400 words, listing every technical suspension, collection, or vendor action that must occur outside the hold notice itself, who owns each action, and the deadline for each, ordered by urgency. The memo must state which single action is most time-critical and why.

Q13 key (Litigation Hold, drafting)

Score the two documents against this checklist; each omission is a candidate material failure because each maps to a distinct loss of evidence or a sanction path.

1. Hold reaches the correct custodians: Sara Okafor and her six, both Fenwick contractors, Marcus Bell (departing), sales and support personnel on the Ridgeline account, IT, and the records owner for the shared drive.
2. Subject matter and date range: VX-9 sensor design, firmware, testing, complaints, and Ridgeline communications, approximately three years to present.
3. Personal-device messaging expressly covered: auto-delete must be disabled or content collected now; the group thread named; contractor devices included through Fenwick.
4. Slack 45-day deletion: suspension or export directed.
5. Test-bench telemetry 21-day rollover: collection ordered before the cycle destroys the incident-period data.
6. Marcus Bell: Friday reimaging halted, laptop imaged, 30-day email deletion suspended.
7. Weekend shared-drive purge: cancelled or scoped away from relevant folders.
8. Vendor-held sources: CRM, support-ticket platform (12-month attachment retention) preserved by instruction to the vendor.
9. Process integrity: no custodian self-selection; preserve in place; acknowledgment required with a named contact; no merits argument or admissions in the notice.
10. Action memo: names an owner and deadline per task and correctly identifies the most time-critical action as the personal-device auto-delete (one-week destruction cycle already running), with Bell's Friday reimaging and the weekend purge immediately behind it. An answer choosing one of those two as most urgent with sound reasoning is acceptable; omitting the auto-delete entirely is not.