Each day, billions of new emails, word processing documents and spreadsheets are created by organizations large and small.

Likewise, vast amounts of electronically stored information (ESI) are destroyed each day in the normal course of business. Users make deletion decisions on their own. Organizations have automated email deletion software and their own document retention and destruction policies.

What happens when your corporate client gets sued? Computer users unaware of the suit will continue their habitual deletion practices while those who know about it may make unwise decisions about ESI.

What about those automated deletion protocols? They don’t just shut off by themselves. Someone actually has to adjust the settings – usually whoever manages an organizations’ IT department. IT managers are often not informed of new lawsuits and therefore won’t adjust the settings without an express command from a supervisor or in-house counsel.

The best way to avoid destruction of ESI and other documents relevant to a lawsuit is to draft a litigation hold notice. This formal notice alerts staff of the lawsuit in general terms and it helps to identify those potentially responsive to ESI. The litigation hold notice is delivered to your client’s in-house legal department, management, IT department as well as employees and other agents who you identify as “key individuals” involved with the subject matter giving rise to the suit. With nearly all litigation today involving ESI in one form or another, cases are often won or lost on a client’s ability and willingness to comply with a litigation hold notice.

Courts have uniformly held that the Federal Rules of Civil Procedure and common law impose on attorneys and their clients a joint obligation to preserve all ESI and other evidence that is relevant to issues in the suit or that could lead to the discovery of relevant evidence. Compliance with the litigation hold process in a timely manner is critical – not doing so can result in court-ordered monetary sanctions, adverse inference jury instructions, or, worst case, a default judgment against your client.

Litigation notices must be designed to put a quick stop to the destruction or alteration of  ESI subject to preservation. The notices give specific directions on how to assure preservation of existing evidence. The notices also instruct employees to be judicious in the creation of new emails and other documents relating to the suit, and not to delete such new documents for any reason. Additional instructions may direct employees not to open existing documents on their hard drives or on a server because doing so will change metadata (such as the time and date a document was last accessed).

Before a litigation hold notice is even drafted, counsel must determine, in cooperation with their client, what documents are relevant to issues in a lawsuit, the location of every device on which relevant ESI is stored and the identity of the custodian who controls access and management of those documents.

This can be a challenging task and should be undertaken by a team of individuals who understand the nature of the lawsuit, the company’s information technology network structure and the employee organizational chart.

After the litigation hold is drafted, it is important to disseminate it widely within the company. Even those parties that might seem tangential to a lawsuit – think administrative assistants or third-party partners – should be instructed to forego further document deletion.

All of this may sound daunting and, indeed, it can be. However, there are methods for making the litigation hold process smoother. Here are a few ways to prepare for a litigation hold notice even before your client is sued:

•    Instruct your client to have a working knowledge of their own IT networks, complete with a full inventory of all workstations, laptops, smartphones, PDAs, servers and software.

•    Instruct your client to draw up a diagram of their current IT network that shows how the network is set up.

•    Train IT managers what to do in advance of receiving a litigation hold letter. For example, you might consider ensuring someone in the IT department knows how to image a hard drive to forensic standards.

•    Continually monitor and enforce compliance with the litigation hold notice and keep a complete record in order to assure, and if necessary to prove, reasonable efforts to meet the duty to preserve.

The final point above can’t be emphasized enough. Litigation hold notices are useless unless they are enforced and it’s verified that your client is in compliance. Remember, attorneys and their clients are jointly responsible.

The whole integrity of the American justice system depends on evidence being preserved and made available before and during trial. Remember too that sanctions can be imposed for both negligent e-discovery misconduct and willful misconduct.

In other words, don’t expect any leniency from the judge when you go into court and claim ignorance. It won’t wash.

C. Dean Little is an attorney and principal at Blank Law + Technology PS. Mr. Little brings more than 30 years of experience and skill as an advocate in complex commercial disputes. His practice emphasizes securities litigation, intellectual property and unfair competition litigation and government civil enforcement proceedings.