What should in-house counsel put in a litigation hold after a patent notice?

When should preservation be addressed?

Rule 37(e) addresses electronically stored information that should have been preserved in anticipation or conduct of litigation. Counsel should assess that point when a serious patent dispute arises, including before a complaint. Do not wait for a trial schedule to identify records at risk of routine deletion.

What should the instructions cover?

Identify relevant email, messages, code repositories, design files, testing records, sales data, and responsible personnel. Check automatic deletion, departing employees, and product updates. Rule 26(f) specifically includes preservation in the parties' discovery planning. The scope should follow the dispute and be revisited as the issues develop.

What happens if information is lost?

Rule 37(e) distinguishes curative measures for prejudice from the more severe measures requiring intent to deprive another party of the information's use. Its conditions include failure to take reasonable steps and inability to restore or replace the information through discovery. Preserve existing records accurately; a hold is not an instruction to rewrite them.