Preserving company E-mail that may be relevant in litigation is important for every business. Failure to do so can open a company to liability for breaching the duty to preserve evidence.

Sending a notice to employees who may have relevant E-mail is an important step in preserving such evidence. The notice, commonly referred to as a litigation hold, should instruct employees not to discard or erase such E-mails.

A recent decision by the 2nd Circuit Court of Appeals held that failure to send a litigation hold doesn’t constitute gross negligence per se, resulting in grounds for judicial sanctions, but it is an important factor to consider in determining if sanctions are warranted. [Chin v. Port Authority, 7/10/12]