"It ain't over 'till it's over." Yogi Berra was talking about baseball, but the quote applies just as well to lawsuits. It is no secret that litigation can be a very protracted process, and, when a party is subject to a litigation hold, it seems that much longer.
One question that lawyers get with some frequency is "how long do we have to maintain this hold?" The answer is that it depends. One touchstone, though, is that the hold should remain in effect until all deadlines for appeal or further review have expired.
In a recent Louisiana case, Pipes v. UPS, UPS was hit with a motion for sanctions due to alleged spoliation of evidence. One of its drivers was involved in an accident. After the accident, UPS fired the driver and he filed a grievance protesting his termination. He argued that the accident was not his fault, but rather was caused by a faulty tire on his delivery van. His grievance was denied at all stages, and his firing was upheld. Following the end of the grievance process, van maintenance records were destroyed, and the allegedly faulty tire was released to a vendor.
However, the fired driver then sued both UPS (for firing him) and his union (for inadequate representation) in federal court. When he discovered that the maintenance records and tire were gone, he brought a motion for sanctions. UPS's managers testified that they thought they could put the matter behind them when the grievance was decided, and so had gotten rid of the evidence. The court ultimately declined to sanction UPS because the driver's claim lacked merit, and the tire and maintenance records were ultimately only slightly relevant to his claims.
As demonstrated by this case, it is imperative that litigation holds remain in place until appeal or review opportunities have passed. This is a tricky issue where, as here, the avenue for appeal may be novel (one of UPS's managers testified that he had never seen a grievance decision appealed). It is important that the person managing the hold make sure that all key players are on the same page about when the hold may be released, and that attorneys keep their clients informed about the possible avenues and timelines for appeal.