Consider in Zubulake v. UBS Warburg, a case focused on the duties of in-house and outside counsel related to litigation holds and document retention policies. Although UBS Warburg claimed to have issued and reissued litigation holds, the court concluded that “a party cannot reasonably be trusted to receive a litigation hold instruction once and to fully comply with it without the active supervision of counsel.” The court suggested instructions for in-house and outside counsel to follow as a means of demonstrating their “continuous efforts to satisfy the duty,” which includes: (1) issuing a litigation hold at the outset of litigation or whenever it is reasonably anticipated, including reissuing them periodically; (2) communicating directly and periodically with key players regarding preservation duty; and (3) instructing all employees to produce electronic copies of their relevant active files and to ensure that all backup media is identified and stored in a safe place.

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