Litigation Holds And Data Preservation Over The Holidays

Litigation Holds And Data Preservation Over The Holidays

Year end closures and reduced staffing create the conditions where evidence goes missing. New Jersey courts expect parties to preserve relevant information once litigation is filed or reasonably anticipated. That duty does not pause for holidays. It attaches when a dispute becomes likely based on demand letters, preservation requests, internal incident reports, regulatory inquiries, or credible threats of suit.

From that point forward, your focus must shift from ordinary retention to active preservation. Judges in this state look for prompt written holds, clear instructions to custodians, and concrete steps to stop routine deletion. When those steps are missing, the consequences range from fee awards and compelled forensic collection to adverse inference instructions at trial.

When The Duty Attaches And What It Covers

The trigger is foreseeability, not the formal filing date. If your business receives a demand on December first that puts you on notice of a claim, you cannot wait until January to act. The scope is broad. It includes emails, texts, team collaboration messages, chatbots used for work, shared drives, cloud storage, social media, call recordings, point of sale data, building and vehicle telematics, surveillance video, access control logs, payroll and timekeeping systems, and any drafts or reports that discuss the event. Paper records remain in scope as well. New Jersey discovery practice permits parties to obtain any nonprivileged matter relevant to a claim or defense that is proportional to the needs of the case. That standard captures the systems most companies use every day, and courts expect a preservation plan that matches your actual operations, not a generic policy.

How New Jersey Courts Respond To Preservation Failures

Sanctions flow from the Court’s authority to manage discovery and to remedy prejudice. New Jersey courts commonly impose fee shifting, compel supplemental searches, and give juries an adverse inference where the facts support it. In Rosenblit v. Zimmerman, the Supreme Court of New Jersey described remedies for spoliation that include discovery sanctions and an adverse inference charge when evidence is destroyed or concealed, and recognized a separate claim for fraudulent concealment in appropriate circumstances. The lesson is straightforward. Once the duty to preserve attaches, the party must act with reasonable promptness and document what was done. The holidays do not excuse delay.

Remedies for evidence destruction under New Jersey law include discovery sanctions, adverse inference instructions, fee awards, and, in severe cases, dismissal or a separate tort claim for fraudulent concealment. Rosenblit v. Zimmerman, 166 N.J. 391 (2001), expressly recognized both evidentiary and tort remedies for spoliation. Later cases, including Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div. 2010), and Hopper v. Lexus of Edison, A-4436-19 (App. Div. July 19, 2021), reaffirm that sanctions under Rule 4:23-2(b) and the court’s inherent powers depend on prejudice and reasonableness.

Issuing A Hold Before Offices Close

A litigation hold is a written directive from counsel that suspends routine deletion for identified topics, custodians, and systems. In practice, it must do three things. It must explain the dispute in plain terms so employees know what to save. It must list the locations where relevant data is likely to live. It must tell people how to preserve it. Before holiday closures, identify your timekeeping and messaging systems, your security cameras and their overwrite cycles, and any auto deletion settings in email, chats, and cloud drives. If surveillance systems overwrite in fourteen or thirty days, export the relevant windows now. If your collaboration platform purges messages after ninety days, suspend that policy for named custodians. If key employees travel or take extended leave, confirm that someone with administrator rights can access their accounts for preservation and collection.

Coordinating With Vendors And Third Parties

Many critical records sit with outside providers. Payroll and scheduling vendors hold logs that prove who was on site and when. Managed IT providers control email retention, backups, and mobile device management. Property managers control common area cameras and incident logs. Payment processors hold transaction data and chargeback records. Social media platforms store account content that can vanish if a user deletes a post. Preservation often requires notice to these entities and, in some cases, service of a subpoena after filing. During year end, staff at these vendors may be thin. Send preservation notices early, identify the specific locations and time windows, and ask for written confirmation that deletion has been suspended. Keep copies of every notice and every response. That paper trail is persuasive when an opponent claims that data was allowed to disappear.

Bring Your Own Device And Personal Accounts

New Jersey judges expect reasonable steps to preserve business information even when it resides on employee phones or personal cloud accounts. If your policy permits business texting or messaging on personal devices, your hold must reach those communications. The same is true for work done through personal email or storage, which is common in small businesses. Give clear instructions on how to preserve and collect without invading purely personal content. Mobile screenshots, exports, and targeted collections can capture what is needed without sweeping in family photos or unrelated messages. Early clarity prevents later motion practice over access and scope.

Holiday Operations, Facilities, And Physical Evidence

Winter weather and holiday hours bring unique risks to physical evidence. Wet entrance mats, salt buckets, ladder placements, temporary barriers, and signage are all part of premises cases. Photograph and label these items before they are moved for cleaning or returned to storage. Retain incident reports, radio logs, and shift rosters. Preserve the exact signage used, not just a template file. If a product or fixture is involved in an injury, secure it with a chain of custody and store it in a manner that prevents further change. Document temperatures and maintenance calls for HVAC or refrigeration failures. These steps cost little and close the gaps that often lead to adverse inferences.

Proportionality And Targeted Scope

Preservation is measured by reasonableness. No court expects a company to freeze every byte across every system for a minor dispute. Courts do expect a defensible plan tied to the issues. Identify the time period that matters, the custodians who were actually involved, and the systems they used. Write this plan down. Record when the hold issued, who received it, what settings were changed, what exports were made, and where preserved data is stored. When an opposing party seeks a broader sweep, you can present a documented approach and ask the Court to keep preservation and collection proportional to the case.

Collection, Chain Of Custody, And Early Review

Once preservation is in place, collect promptly from the highest value sources. Exports from email, collaboration platforms, and camera systems should be made to dedicated preservation folders with access controls. Maintain a simple chain of custody log that records who exported, when, from what system, and to where. Begin a preliminary review to confirm that the right sources have been captured. If a gap is discovered, supplement immediately and update the hold. Courts respond favorably when parties self correct early without waiting for an opponent to raise the issue.

Communications With Opposing Counsel

Holiday calendars often complicate scheduling. Address preservation directly in your first communication with opposing counsel. Confirm that both sides will maintain relevant emails, messages, and video, and ask for any unique sources you should know about. Where appropriate, propose an early consent order that requires both sides to preserve named categories of ESI. This protects your client and narrows later disputes. If an opponent refuses to confirm basic preservation, be prepared to raise the issue with the Court on short notice, since delay is the enemy of evidence.

Documentation That Wins Preservation Motions

When preservation becomes a motion, New Jersey judges decide based on reasonableness and prejudice. The strongest record shows a hold issued at the first reasonable moment, system settings suspended, key sources exported, custodians acknowledged and certified compliance, vendors notified, and follow up conducted. The weakest record shows a vague email to staff, no changes to auto deletion, and no proof of exports. Build the strong record now. If the dispute continues into the new year, you will have the facts needed to defeat sanctions or to obtain relief when the other side did not do the same.

Practical Conclusion

Treat the holiday period as a stress test for your preservation practices. Identify your high value systems, send a written hold before offices close, suspend auto deletion, pull surveillance windows, notify vendors, and secure physical evidence. Reach personal devices where business is conducted. Document every step so you can prove what you did and when you did it. This disciplined approach satisfies New Jersey preservation standards, prevents avoidable sanctions, and preserves leverage when the case turns to the merits in January.

For more information about your legal rights or to schedule a consultation, please contact the Law Offices of Peter J. Lamont at www.pjlesq.com, call 201-904-2211, or email info@pjlesq.com.

Contact us today to discuss your business or legal matter. Put our 20+ years of legal experience to work for you.

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For detailed insights and legal assistance on topics discussed in this post, including litigation, contact the Law Offices of Peter J. Lamont at our Bergen County Office. We're here to answer your questions and provide legal advice. Contact us at (201) 904-2211 or email us at  info@pjlesq.com.

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About Peter J. Lamont, Esq.

Peter J. Lamont is a nationally recognized attorney with significant experience in business, contract, litigation, and real estate law. With over two decades of legal practice, he has represented a wide array of businesses, including large international corporations. Peter is known for his practical legal and business advice, prioritizing efficient and cost-effective solutions for his clients.

Peter has an Avvo 10.0 Rating and has been acknowledged as one of America's Most Honored Lawyers since 2011. 201 Magazine and Lawyers of Distinction have also recognized him for being one of the top business and litigation attorneys in New Jersey. His commitment to his clients and the legal community is further evidenced by his active role as a speaker, lecturer, and published author in various legal and business publications.

As the founder of the Law Offices of Peter J. Lamont, Peter brings his Wall Street experience and client-focused approach to New Jersey, offering personalized legal services that align with each client's unique needs and goals​.

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