Essential Guide to Litigation Holds for Modern Legal Teams
Understand when litigation holds are triggered, how to implement them, and how to avoid spoliation and sanctions in civil disputes.
Litigation holds, sometimes called legal holds, are a cornerstone of modern civil practice. They ensure that potentially relevant information is preserved when a dispute becomes serious enough that litigation is filed or reasonably expected. Implementing a defensible litigation hold can mean the difference between a smooth discovery process and severe court sanctions for spoliation of evidence.
What Is a Litigation Hold?
A litigation hold is an internal directive, usually issued by an organization’s legal department, instructing employees and other custodians to preserve documents, data, and other materials that may be relevant to an existing or anticipated legal matter.
In practice, a litigation hold generally involves:
- Suspending routine record destruction or auto-deletion policies for specific data sets
- Informing designated custodians that they must preserve certain information
- Monitoring compliance and collecting preserved information for discovery
This obligation is closely tied to civil procedure rules and evidence law. In U.S. federal court, for example, Federal Rule of Civil Procedure 37(e) governs the loss of electronically stored information (ESI) and authorizes sanctions if parties fail to take reasonable steps to preserve relevant data.
When Does the Duty to Preserve Arise?
The duty to preserve information does not wait until a complaint is formally filed. Courts generally hold that parties must act when litigation is reasonably anticipated, not just when it is already pending.
Common events that may trigger a litigation hold include:
- Receipt of a formal complaint, demand letter, or subpoena
- Notice of a government or regulatory investigation
- Serious incidents that predictably lead to litigation (e.g., product failures, major accidents, high-risk terminations)
- Internal reports or communications indicating a credible threat of legal action
Once a reasonable anticipation of litigation exists, an organization must identify potential sources of relevant information and initiate a hold in a timely manner.
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What Needs to Be Preserved?
Litigation holds are broad in scope. They generally cover any information that may be relevant to claims or defenses in the dispute, regardless of the medium. Modern cases often require preserving large volumes of electronically stored information in addition to paper records.
| Category | Examples of Materials Commonly Covered |
|---|---|
| Traditional documents | Contracts, letters, memoranda, meeting minutes, policies, printed reports |
| Emails and messaging | Email messages, attachments, internal chat tools, text messages, collaboration platform messages |
| Business records | Spreadsheets, presentations, databases, logs, accounting records |
| ESI in systems and cloud tools | Shared drives, document management systems, cloud storage, project management tools, CRM data |
| Media and other data | Voicemail, audio and video recordings, photographs, calendars, geolocation data |
| Physical items | Equipment, samples, prototypes, handwritten notes, lab materials when relevant |
The scope is limited by relevance and proportionality. The goal is to preserve information that is reasonably likely to be important to the dispute, not every piece of data an organization possesses.
Key Players in the Litigation Hold Process
A defensible litigation hold requires coordination across several roles inside an organization.
- General counsel / in-house legal team – Determines when a hold is required, defines its scope, drafts notices, and oversees compliance.
- Outside counsel – Advises on legal strategy, works with in-house counsel to refine preservation obligations and respond to discovery disputes.
- IT and records management – Implements technical measures (e.g., disabling auto-deletion, archiving mailboxes, securing backups) and assists with data mapping and collection.
- Custodians – Employees or others who control relevant information and must follow the hold instructions carefully.
- Compliance and information governance teams – Align litigation holds with existing retention schedules and regulatory requirements.
Core Steps in Implementing a Litigation Hold
While each organization will tailor its procedures to its size and risk profile, most litigation hold processes follow a recognizable series of steps.
1. Recognize the Trigger and Open a Matter
The legal team first confirms that litigation is filed or reasonably anticipated. This may involve documenting the triggering event, assessing the likelihood of a claim, and opening an internal matter file to track preservation efforts.
2. Identify Key Issues, Systems, and Custodians
Next, the organization must determine what information is relevant and where it lives. Common tasks include:
- Clarifying the factual and legal issues in dispute
- Listing business units and functions likely to have relevant information
- Mapping information systems and storage locations that hold related data
- Identifying custodians such as decision-makers, witnesses, and staff involved in the events at issue
Formal data maps or records inventories can significantly streamline this step.
3. Draft and Issue the Litigation Hold Notice
A litigation hold notice is often sent as a letter or email from the legal department. It should be clear, concise, and tailored to the matter.
Typical elements of a hold notice include:
- A brief description of the dispute or investigation
- The categories of information that must be preserved
- The relevant date ranges and subject areas
- Explicit instructions to stop deleting, altering, or destroying relevant information
- Guidance on how to preserve data (e.g., not emptying email folders, preserving texts, securing paper files)
- Contact information for the legal department for questions
- A request for acknowledgment confirming the recipient has read and will comply with the hold
Notices should be distributed promptly and to all known custodians. As new custodians are identified, they should receive the same or an updated notice without delay.
4. Suspend Routine Destruction and Auto-Deletion
Most organizations have policies for routinely deleting or archiving records. During a litigation hold, those policies must be suspended for affected data to avoid spoliation.
Possible technical measures include:
- Turning off auto-deletion of emails and chat messages for specific custodians
- Locking down shared folders or repositories to prevent content changes
- Retaining relevant backup tapes or altering backup rotation practices for targeted data sets
- Preserving mobile device data, including texts and app communications, where relevant
5. Monitor Compliance and Provide Training
A litigation hold is not a one-time event but an ongoing obligation. Reasonable steps to ensure compliance may include:
- Tracking acknowledgments from all notice recipients
- Sending periodic reminders to custodians
- Offering short training or guidance on how to preserve various types of data
- Coordinating with managers to reinforce expectations
- Auditing or spot-checking preservation efforts in high-risk matters
6. Collect and Review Preserved Information
As the dispute progresses, the organization will typically move from preservation to collection and review. Collection should be defensible and well-documented, demonstrating that data was gathered in a manner that preserves integrity and chain of custody.
Modern e-discovery tools can help efficiently collect ESI from multiple sources, deduplicate materials, and prepare data for attorney review.
7. Modify or Release the Hold
Litigation holds do not last forever. Once a matter is resolved, or if the risk of litigation clearly passes, the legal department may release or narrow the hold. This allows normal retention and deletion policies to resume for the affected data.
Releasing a hold should be documented, and custodians should be informed that they can once again follow standard record-keeping rules for those materials.
Risks of Failing to Implement or Enforce a Litigation Hold
Courts take preservation duties seriously. If a party fails to implement a hold when required, or if relevant information is lost because reasonable preservation steps were not taken, significant consequences may follow.
Potential consequences include:
- Adverse inference instructions – A jury may be instructed that it can presume missing evidence would have been unfavorable to the party that failed to preserve it.
- Issue sanctions – Courts may deem certain facts established or bar a party from introducing certain arguments.
- Monetary sanctions – Parties may be ordered to pay opposing counsel’s fees and costs associated with addressing spoliation.
- Case-dispositive sanctions – In extreme cases, courts may dismiss claims or enter default judgment when intentional destruction of evidence is found.
Beyond litigation risk, failures in preservation can damage an organization’s reputation and lead to regulatory or ethical concerns.
Best Practices for Defensible Litigation Holds
In-house counsel and legal operations teams can significantly reduce risk by establishing structured, repeatable litigation hold procedures.
- Adopt clear written policies that describe when and how litigation holds must be issued and by whom.
- Maintain data maps and system inventories so the legal team can quickly determine where relevant data resides.
- Use standardized templates for hold notices while allowing room for matter-specific customization.
- Leverage legal hold software or case management tools to track notices, acknowledgments, reminders, and releases.
- Coordinate across departments, especially with IT, records management, and HR, for consistent implementation.
- Train employees on their responsibilities when they receive a litigation hold notice, emphasizing that failure to comply can have serious consequences for the organization and, in some cases, for individuals.
- Document decisions and actions related to preservation so the organization can later demonstrate its good-faith, reasonable efforts if challenged.
Frequently Asked Questions (FAQs)
Q1: Is a litigation hold the same as a legal hold?
Yes. The terms litigation hold and legal hold are commonly used interchangeably to describe the process by which an organization instructs custodians to preserve potentially relevant information in anticipation of or during a legal matter.
Q2: Who decides that a litigation hold is necessary?
The decision usually rests with in-house counsel or an organization’s chief legal officer, often in consultation with outside counsel. They assess whether a complaint, investigation, or other event creates a reasonable anticipation of litigation that triggers preservation duties.
Q3: How long does a litigation hold last?
A litigation hold remains in effect as long as the underlying matter is pending or reasonably anticipated. Once litigation and any appeals are concluded, and related regulatory or enforcement risks have ended, the legal department can lift or narrow the hold and allow normal retention schedules to resume.
Q4: Are verbal instructions enough, or should holds always be in writing?
Best practice is to issue litigation holds in writing. Written notices provide clarity to custodians, reduce misunderstandings, and create a record showing the organization took concrete, reasonable steps to preserve evidence if preservation efforts are later challenged in court.
Q5: Do small organizations need litigation hold procedures?
Yes. The duty to preserve relevant evidence applies regardless of size. While the scale and complexity of procedures may differ, even small entities benefit from a simple, documented process to identify custodians, issue instructions, and suspend destruction of key records when disputes arise.
References
- Litigation holds: What in-house counsel need to know — Thomson Reuters. 2023-05-01. https://legal.thomsonreuters.com/en/insights/articles/litigation-holds-what-in-house-counsel-need-to-know
- NIH Litigation Hold Policy (1743-2) — National Institutes of Health. 2020-12-18. https://policymanual.nih.gov/1743-2
- What is a Legal Hold: Litigation Holds 101 — Digital WarRoom. 2022-08-10. https://www.digitalwarroom.com/blog/litigation-hold
- Legal Hold Best Practices: A Process Guide — CS Disco. 2023-04-05. https://csdisco.com/blog/legal-hold-best-practices-guide
- Litigation Holds: Ten Tips in Ten Minutes — U.S. District Court for the District of Nebraska (CLE material). 2010-07-01. https://www.ned.uscourts.gov/internetDocs/cle/2010-07/LitigationHoldTopTen.pdf
- CHAPTER 4: Legal Hold (Litigation Hold) — Exterro e-discovery basics. 2022-11-15. https://www.exterro.com/basics-of-e-discovery/chapter-4-legal-hold-litigation-hold
- What is a Legal Holding in the Field of Law? — American Public University System. 2023-05-16. https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-legal-holding/
- Litigation Hold FAQs — Office of General Counsel, Brown University. 2018-09-01. https://ogc.brown.edu/litigation-hold-faqs
- Legal Hold 101: The Basics — Relativity. 2021-06-30. https://www.relativity.com/blog/legal-hold-101-the-basics/
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