Litigation Hold Retainer Agreement

LITIGATION HOLD RETAINER AGREEMENT

LITIGATION READINESS AND EVIDENCE PRESERVATION SERVICES

AGREEMENT DATE: [__/__/____]

ATTORNEY INFORMATION

Name: [________________________________]
Bar Number: [________________________________]
Firm Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

CLIENT INFORMATION

Name (Organization): [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Primary Contact: [________________________________]
Title: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

ARTICLE 1: PURPOSE OF ENGAGEMENT

1.1 Litigation Readiness Services

This Agreement engages Attorney to provide litigation readiness and evidence preservation services in anticipation of potential litigation, investigation, or regulatory proceeding. Attorney will assist Client in implementing and maintaining a litigation hold to preserve potentially relevant evidence.

1.2 Triggering Event

Reason for Anticipated Litigation/Investigation:

☐ Demand letter received from: [________________________________]
☐ Complaint expected from: [________________________________]
☐ Government investigation (agency): [________________________________]
☐ Regulatory inquiry (agency): [________________________________]
☐ Internal investigation findings
☐ Contract dispute with: [________________________________]
☐ Employment claim anticipated by: [________________________________]
☐ Product liability concern
☐ Intellectual property dispute
☐ Other: [________________________________]

Date Litigation Became Reasonably Anticipated: [__/__/____]

Brief Description of Potential Claims/Issues:
[________________________________]
[________________________________]
[________________________________]

1.3 Preservation Obligation Context

Client understands that:

☐ Once litigation is reasonably anticipated, a duty to preserve relevant evidence arises
☐ Failure to preserve evidence may result in spoliation sanctions
☐ Sanctions may include adverse inference instructions, monetary penalties, or dismissal
☐ Electronic data requires special preservation measures
☐ Routine document destruction must be suspended for relevant materials

ARTICLE 2: SCOPE OF SERVICES

2.1 Services INCLUDED in This Agreement

Litigation Hold Implementation:
☐ Assessment of preservation obligations based on anticipated claims
☐ Identification of relevant custodians (employees with potentially relevant information)
☐ Identification of relevant data sources and repositories
☐ Drafting of litigation hold notice(s)
☐ Distribution of litigation hold notice to custodians
☐ Acknowledgment tracking and follow-up
☐ Custodian interviews to identify data sources
☐ Periodic reminder notices to custodians

Preservation Planning:
☐ Development of preservation plan
☐ Identification of IT systems containing relevant data
☐ Coordination with Client's IT department
☐ Recommendations for data preservation methods
☐ Suspension of auto-delete policies for relevant data
☐ Backup and archive preservation recommendations

Documentation:
☐ Litigation hold documentation and records
☐ Custodian acknowledgment tracking
☐ Preservation action documentation
☐ Defensibility memorandum preparation

Ongoing Monitoring:
☐ Periodic review of litigation hold status
☐ Addition of new custodians as needed
☐ Litigation hold release upon resolution

Legal Assessment:
☐ Initial case assessment and risk analysis
☐ Evaluation of potential claims and defenses
☐ Statute of limitations monitoring
☐ Insurance coverage identification

2.2 Services EXCLUDED from This Agreement

Client understands and agrees that the following services are NOT included:

Active Litigation:
☐ Filing or defending lawsuit
☐ Court appearances
☐ Discovery responses and production
☐ Depositions
☐ Motion practice
☐ Trial preparation and trial
☐ Appeals

E-Discovery Processing:
☐ Collection of electronic data
☐ Processing and hosting of ESI
☐ Review and production of documents
☐ E-discovery vendor coordination (beyond initial planning)

Investigation:
☐ Fact investigation beyond custodian interviews
☐ Witness interviews (non-custodian)
☐ Forensic examination
☐ Expert retention

Negotiation/Resolution:
☐ Settlement negotiation
☐ Mediation representation
☐ Pre-suit demand letters (unless specifically included)

CLIENT INITIALS: [____]

ARTICLE 3: LITIGATION HOLD IMPLEMENTATION

3.1 Custodian Identification

Attorney will work with Client to identify:

Key Custodians (individuals likely to have relevant information):

☐ Additional custodians may be added as matter develops
☐ Former employees included: ☐ Yes ☐ No
☐ Third-party custodians identified: ☐ Yes ☐ No

3.2 Data Sources to Preserve

Attorney will identify and Client will preserve the following categories of data:

Electronic Data:
☐ Email (specify systems): [________________________________]
☐ Documents and files (specify locations): [________________________________]
☐ Databases (specify): [________________________________]
☐ Messaging/chat applications: [________________________________]
☐ Mobile devices
☐ Laptops and desktops
☐ Network shared drives
☐ Cloud storage (specify): [________________________________]
☐ Backup tapes/archives
☐ Social media accounts
☐ Voicemail
☐ Other: [________________________________]

Physical Documents:
☐ Paper files
☐ Notebooks and journals
☐ Physical evidence/samples
☐ Other: [________________________________]

3.3 Time Period for Preservation

Evidence shall be preserved for the following time period:

Start Date: [__/__/____]
End Date: [__/__/____] or ☐ Ongoing until litigation resolved

Rationale for Time Period:
[________________________________]

3.4 Litigation Hold Notice

Attorney will prepare litigation hold notice(s) including:

☐ Description of anticipated litigation/matter
☐ Categories of information to preserve
☐ Time period covered
☐ Specific preservation instructions
☐ Suspension of routine deletion
☐ Contact person for questions
☐ Acknowledgment requirement
☐ Consequences of non-compliance

Notice Distribution Method:
☐ Email
☐ Certified mail
☐ In-person meeting
☐ Combination

3.5 Acknowledgment Tracking

☐ Custodians required to acknowledge receipt in writing
☐ Attorney will track acknowledgments
☐ Follow-up for non-responsive custodians
☐ Documentation of all acknowledgments

ARTICLE 4: CLIENT RESPONSIBILITIES

4.1 Cooperation

Client agrees to:

☐ Designate internal litigation hold coordinator: [________________________________]
☐ Provide prompt access to custodians for interviews
☐ Provide IT system information and access
☐ Implement recommended preservation measures
☐ Suspend relevant auto-delete policies
☐ Notify Attorney of departing employees who are custodians
☐ Notify Attorney of system changes affecting preserved data

4.2 Custodian Compliance

Client is responsible for:

☐ Ensuring custodians receive and acknowledge litigation hold
☐ Monitoring custodian compliance with preservation obligations
☐ Reporting compliance issues to Attorney
☐ Taking appropriate action for non-compliant custodians

4.3 IT Coordination

Client agrees to:

☐ Provide IT contact: [________________________________]
☐ Implement IT-level preservation measures as recommended
☐ Maintain backups and archives during hold period
☐ Document preservation actions taken
☐ Notify Attorney of any data loss or technical issues

4.4 Ongoing Communication

Client agrees to:

☐ Notify Attorney of any litigation-related developments
☐ Notify Attorney of new potentially relevant custodians
☐ Notify Attorney of new data sources discovered
☐ Respond to Attorney inquiries within [____] business days

ARTICLE 5: ATTORNEY RESPONSIBILITIES

5.1 Standard of Care

Attorney will provide competent litigation readiness services in accordance with applicable rules of professional conduct.

5.2 Deliverables

Attorney will provide:

☐ Litigation hold notice (initial)
☐ Preservation plan document
☐ Custodian interview summaries
☐ Data map of relevant sources
☐ Acknowledgment tracking report
☐ Periodic status updates
☐ Defensibility memorandum (upon request)
☐ Litigation hold release notice (when appropriate)

5.3 Timeline

5.4 Communication

Attorney will:

☐ Provide regular status updates: ☐ Weekly ☐ Bi-weekly ☐ Monthly
☐ Respond to Client inquiries within [____] business days
☐ Notify Client immediately of significant developments

ARTICLE 6: TRANSITION TO ACTIVE LITIGATION

6.1 Commencement of Litigation

If litigation commences:

☐ Separate fee agreement required for litigation representation
☐ This Agreement terminates and transitions to litigation agreement
☐ Attorney will discuss litigation options with Client
☐ Client may retain other counsel for litigation

6.2 Preservation During Litigation

☐ Litigation hold remains in effect during litigation
☐ Responsibility for hold management transitions to litigation counsel
☐ Attorney will cooperate with transition to litigation counsel

6.3 No Litigation Commenced

If statute of limitations expires or claims are otherwise resolved without litigation:

☐ Attorney will advise Client regarding litigation hold release
☐ Litigation hold release notice will be prepared
☐ Documentation retained per retention policy

ARTICLE 7: FEES AND PAYMENT

7.1 Fee Structure

Client agrees to pay Attorney according to the following structure:

☐ Flat Fee for Initial Implementation: $[________________________________]

• Includes: litigation hold notice, preservation plan, initial custodian interviews (up to [____] custodians)
• Additional custodians: $[________________________________] each

☐ Hourly Rate:

• Attorney rate: $[________________________________] per hour
• Associate rate: $[________________________________] per hour
• Paralegal rate: $[________________________________] per hour

☐ Monthly Monitoring Retainer: $[________________________________] per month

• Includes: ongoing monitoring, periodic reminders, status updates
• Custodian additions/changes: additional hourly charges

☐ Hybrid Fee:

• Initial implementation flat fee: $[________________________________]
• Monthly monitoring: $[________________________________] per month

7.2 Retainer Deposit

Client shall pay an initial retainer deposit of $[________________________________].

☐ Non-refundable engagement fee
☐ Refundable security retainer applied to final invoice
☐ Advance payment applied as services rendered

7.3 Payment Terms

☐ Monthly invoicing with payment due within [____] days
☐ Quarterly invoicing with payment due within [____] days
☐ Upon completion of implementation phase
☐ Other: [________________________________]

7.4 Costs and Expenses

Client agrees to pay the following costs:

☐ Document reproduction
☐ Travel expenses for on-site meetings
☐ Technology/software for tracking
☐ Third-party vendor fees (if recommended)
☐ Other: [________________________________]

ARTICLE 8: CONFIDENTIALITY AND PRIVILEGE

8.1 Attorney-Client Privilege

All communications between Attorney and Client regarding this engagement are protected by attorney-client privilege.

8.2 Work Product Protection

Materials prepared by Attorney in anticipation of litigation are protected as attorney work product.

8.3 Litigation Hold Confidentiality

☐ Existence and contents of litigation hold are confidential
☐ Custodians should not discuss litigation hold with third parties
☐ Litigation hold notice should not be distributed outside organization

8.4 Preservation of Privilege

Client understands that:

☐ Disclosure to third parties may waive privilege
☐ Attorney should review potentially privileged documents before production
☐ Privilege logs may be required if litigation commences

ARTICLE 9: RISK ACKNOWLEDGMENTS

9.1 Spoliation Risk

Client acknowledges understanding of:

☐ Duty to preserve evidence once litigation is reasonably anticipated
☐ Potential sanctions for failure to preserve (adverse inference, monetary penalties, dismissal)
☐ FRCP Rule 37(e) standards for ESI spoliation
☐ State law spoliation standards may differ
☐ Reasonable steps must be taken to preserve
☐ Perfection is not required, but good faith is

9.2 No Guarantee

Attorney has made NO guarantees regarding:

☐ Outcome of any litigation
☐ Avoidance of all spoliation claims
☐ Completeness of preservation despite reasonable efforts
☐ Opposing party's acceptance of preservation efforts

9.3 Client's Execution Responsibility

Client understands that:

☐ Attorney provides advice and planning; Client must execute preservation
☐ Client is responsible for IT and custodian compliance
☐ Attorney's role is advisory, not operational
☐ Failure to implement recommendations may result in sanctions

CLIENT INITIALS: [____]

ARTICLE 10: TERMINATION

10.1 Termination by Client

Client may terminate this Agreement by providing written notice. Upon termination:

☐ Client owes fees for services rendered through termination date
☐ Litigation hold obligations may continue regardless of Attorney engagement
☐ Attorney will provide file and work product to Client

10.2 Termination by Attorney

Attorney may withdraw upon:

☐ Client's failure to pay fees when due
☐ Client's failure to cooperate with preservation efforts
☐ Discovery of conflict of interest
☐ Client's refusal to implement reasonable preservation measures
☐ Other good cause

10.3 Litigation Hold Continuation

IMPORTANT: Termination of this Agreement does NOT terminate Client's legal obligation to preserve evidence. Client must:

☐ Maintain litigation hold until litigation resolved or limitations expire
☐ Designate internal personnel to manage ongoing preservation
☐ Retain other counsel to advise on preservation if needed

ARTICLE 11: GENERAL PROVISIONS

11.1 Entire Agreement

This Agreement constitutes the entire agreement between the parties.

11.2 Amendments

This Agreement may only be amended by written instrument signed by both parties.

11.3 Governing Law

This Agreement shall be governed by the laws of the State of [________________________________].

11.4 Dispute Resolution

Disputes arising from this Agreement shall be resolved by:

☐ Mediation followed by binding arbitration
☐ Fee arbitration through [________________________________] Bar Association
☐ Litigation in [________________________________] County

11.5 Severability

If any provision is unenforceable, the remaining provisions shall continue in effect.

ARTICLE 12: SIGNATURES

By signing below, the parties acknowledge that they have read, understand, and agree to be bound by the terms of this Agreement.

ATTORNEY:

Signature: [________________________________]
Name: [________________________________]
Date: [__/__/____]

CLIENT:

Signature: [________________________________]
Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

EXHIBIT A: LITIGATION HOLD NOTICE TEMPLATE

[PRIVILEGED AND CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION]

LITIGATION HOLD NOTICE

Date: [__/__/____]

To: [Custodian Name]

From: [Client - Internal Contact]

Subject: LITIGATION HOLD - Immediate Action Required

PLEASE READ THIS NOTICE CAREFULLY. THIS INVOLVES A LEGAL MATTER AND REQUIRES YOUR IMMEDIATE ATTENTION AND COOPERATION.

1. Purpose

We have reason to anticipate potential litigation, investigation, or legal proceeding involving:

[Brief, non-privileged description of matter]

As a result, we are implementing a litigation hold to preserve potentially relevant documents and information. You have been identified as someone who may have relevant information.

2. Your Obligation

You MUST immediately preserve and retain all documents, data, and other materials that may relate to this matter. This includes both electronic and physical materials.

IMPORTANT: Do NOT delete, destroy, alter, or discard any potentially relevant materials. Routine document destruction and deletion must stop for materials related to this matter.

3. What to Preserve

Please preserve all materials related to:

☐ [Subject matter 1]
☐ [Subject matter 2]
☐ [Subject matter 3]
☐ [Relevant time period]
☐ [Relevant parties/individuals]

This includes but is not limited to:

• Emails (including deleted items and sent items)
• Documents, spreadsheets, presentations
• Text messages and chat/messaging communications
• Voicemails
• Calendar entries
• Notes (electronic and handwritten)
• Physical documents, files, and records
• Photos and videos
• Social media posts and messages

4. Specific Actions Required

☐ Do NOT delete any emails related to this matter
☐ Do NOT empty your deleted items folder
☐ Do NOT destroy any paper documents
☐ Preserve all relevant materials on your devices
☐ Notify IT if you have relevant data on personal devices
☐ Contact [Contact Person] if you are unsure whether something is relevant

5. Acknowledgment Required

Please sign and return the acknowledgment below within [____] business days.

6. Questions

If you have any questions, contact:

Name: [________________________________]
Phone: [________________________________]
Email: [________________________________]

ACKNOWLEDGMENT

I have received and read this Litigation Hold Notice. I understand my obligation to preserve all potentially relevant documents and information. I will comply with this notice.

Name: [________________________________]
Signature: [________________________________]
Date: [__/__/____]

EXHIBIT B: CUSTODIAN INTERVIEW CHECKLIST

Custodian Name: [________________________________]
Title/Position: [________________________________]
Interview Date: [__/__/____]
Interviewer: [________________________________]

1. Role and Responsibilities

☐ Current role and duties
☐ Role during relevant time period
☐ Reporting structure
☐ Department/team involvement

2. Knowledge of Relevant Events

☐ Personal knowledge of events
☐ Communications with relevant parties
☐ Documents created or received
☐ Meetings attended

3. Data Sources

Email:
☐ Email system used
☐ Email address(es)
☐ Archive locations
☐ PST files

Documents:
☐ Local drives
☐ Network drives/shares
☐ Cloud storage (personal/company)
☐ USB drives

Mobile Devices:
☐ Company phone
☐ Personal phone with work data
☐ Tablets
☐ Messaging apps used

Other:
☐ Paper files
☐ Notebooks
☐ Home computer use
☐ Personal email with work content

4. Third Parties

☐ Third parties with relevant information
☐ Vendors/contractors involved
☐ Former employees with knowledge

5. Preservation Confirmation

☐ Understands preservation obligation
☐ Will preserve identified sources
☐ Questions or concerns addressed
☐ Acknowledgment signed

EXHIBIT C: DATA MAP TEMPLATE

Electronic Systems Inventory

Physical Document Locations

SOURCES AND REFERENCES

• FRCP Rule 37(e) - Failure to Preserve Electronically Stored Information
• Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
• Apple Inc. v. Samsung Electronics Co., 881 F. Supp. 2d 1132 (N.D. Cal. 2012)
• The Sedona Conference Commentary on Legal Holds
• Risk Management Magazine - Document Retention and Litigation Hold Orders
• ABA Model Rules of Professional Conduct

This template is provided for informational purposes only and should be reviewed and customized by a licensed attorney familiar with e-discovery and preservation obligations in the applicable jurisdiction.