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A litigation hold is a coordinated process for preserving information that may be relevant to a legal claim or defense. A business should assess a hold when litigation has started or is reasonably anticipated and potentially relevant information is in its possession, custody, or control. The assessment should involve counsel and the people who understand the company’s systems, records, and retention practices.
A hold is not simply a lawsuit filing, a special storage product, or an instruction to keep every company record forever. Its scope depends on the facts: the likely claims and defenses, relevant custodians and systems, date ranges, available duplicate sources, and the burden of preserving the information. This article focuses on U.S. federal civil matters; state law, regulatory proceedings, court orders, industry rules, and other jurisdictions may impose different or additional requirements.
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What a litigation hold does
The purpose of a litigation hold is to prevent the loss, alteration, or routine deletion of information that may be needed in a dispute. It communicates preservation instructions to relevant employees, contractors, and other people or entities whose information is within the organization’s possession, custody, or control. It also coordinates the technical and administrative work needed to keep that information available.
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The U.S. Department of Health and Human Services’ policy describes a hold in its agency context as a notice to retain relevant information regardless of format or physical location and not to alter or destroy it while the hold is active. That policy governs the stated agency scope; it is an example of a process, not a private-business rule.
When does the preservation duty arise?
For a federal civil matter, the common-law preservation duty generally arises when litigation is reasonably anticipated and the organization knows, or should understand, that particular information may be relevant. Federal Rule of Civil Procedure 37(e) addresses what courts may do when qualifying electronically stored information (ESI) is lost; it does not create the underlying duty to preserve. The Federal Judicial Center’s explanation of the 2015 amendment states, “The rule does not create a duty to preserve ESI.”
There is no universal event that triggers a hold in every case. A filed complaint can make the need obvious, but the duty may begin earlier when a dispute, demand, investigation, threatened claim, or business development makes litigation reasonably foreseeable. Counsel must evaluate the facts, the likelihood of litigation, and the connection between the information and the anticipated issues.
Signals that warrant a prompt legal assessment
| Signal | Why it matters | What it does not establish by itself |
|---|---|---|
| A complaint, subpoena, or court order | It provides formal notice of a proceeding and may identify claims, parties, and relevant periods. | It does not automatically define every custodian, system, or date range to preserve. |
| A demand letter or credible threat naming a specific dispute | It may show that litigation is reasonably anticipated before filing. | An angry message with no identifiable legal dispute is not automatically a trigger. |
| A serious internal event, such as a termination, safety incident, data issue, or contract breakdown | Known facts may make a claim likely and identify relevant people and records. | The event alone does not determine whether litigation is reasonably foreseeable. |
| Notice from a regulator, arbitrator, or opposing counsel | It may create separate preservation obligations or a proceeding-specific schedule. | Federal Rule 37(e) is not a complete statement of regulatory or arbitration requirements. |
Businesses should involve qualified counsel early rather than adopting a bright-line policy that treats every customer complaint or possible disagreement as requiring an enterprise-wide hold. The timing and scope are fact-dependent.
How to decide whether to issue a hold
- Ask counsel to assess the matter. Identify the likely claims, defenses, parties, forum, and procedural posture. Counsel should consider whether litigation is reasonably anticipated, what information could be relevant, and whether another rule, order, contract, regulator, or jurisdiction changes the analysis.
- Define an initial time period. Start with the events that may have led to the dispute and the period in which the relevant conduct occurred. Extend the period when facts show that earlier or later information is likely to matter. Record the reason for a significant boundary.
- Map people and information sources. Ask business leaders and IT which employees had relevant knowledge and where their information resides. Consider email, messaging and collaboration tools, customer or transaction systems, shared drives, document-management platforms, mobile devices, paper files, call systems, backups, and third-party services. Do not assume email is the only source.
- Make a reasoned scope decision. Weigh relevance, likely discoverability, duplicate or replacement sources, volume, accessibility, cost, storage capacity, and operational disruption. Document important inclusions and exclusions so the organization can explain why the scope was reasonable.
- Prepare tailored instructions. Tell each affected custodian what subject matter and information types to retain, which date ranges or systems matter, and whom to contact with questions. A general form can help start the process, but known key people and material should receive specific instructions.
- Coordinate technical preservation. Work with IT and records personnel to suspend auto-delete, mailbox-recycling, chat expiration, device-replacement, log-rotation, or other routine processes that could remove relevant information. Apply the suspension only as broadly as the preservation decision requires.
- Track delivery and acknowledgement. Record when each notice was sent, when it was acknowledged, reminders, questions, and the responses. Follow up with nonresponders and escalate repeated failures to the responsible manager or counsel.
- Verify and update. Confirm that the intended systems and custodians are covered. Revisit the hold as pleadings, defenses, custodians, data sources, and relevant dates become clearer. Add or remove scope deliberately and preserve a record of the change.
What should a litigation hold notice include?
A notice should be understandable to the person receiving it and precise enough to guide behavior. It commonly includes:
- A plain-language description of the dispute or investigation and the subjects at issue.
- The types of information to preserve, such as email, messages, documents, spreadsheets, records in named applications, paper files, photographs, or device data.
- Relevant date ranges, projects, customers, products, locations, or transactions.
- A direction not to delete, alter, overwrite, conceal, or discard covered information, including through routine settings.
- Instructions to preserve information in its current form and to notify the sender before changing devices, accounts, or storage locations that may contain it.
- The name or address of a contact for questions and a method for reporting a system or device problem.
- An acknowledgement process and a warning that the instructions remain in effect until written release or updated instructions.
The notice should not require employees to make legal judgments about every file. It should identify practical categories and provide a route for questions. Separate privileged legal advice from operational instructions, and limit distribution to people who need to administer the hold.
How IT and operations should implement the hold
Inventory routine deletion
Identify the settings that could remove covered information: email retention limits, messaging expiration, document-version pruning, mobile-device recycling, backup rotation, database archiving, call-record deletion, and log retention. Determine which settings affect the identified custodians and date ranges.
Pause only what is necessary
Preservation does not necessarily require stopping every deletion process across the company. A targeted suspension may cover named mailboxes, user accounts, projects, devices, or repositories. If a system cannot be paused selectively, counsel and IT should evaluate an alternative export, archive, snapshot, or other reasonable method while considering security and accessibility.
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Protect integrity and access
Preserved data should remain secure, access-controlled, and usable. Keep an audit trail of collection or configuration changes. Avoid altering metadata or converting formats unnecessarily. If information is copied, retain enough context to identify its source, custodian, date, and method of preservation.
Account for personal and third-party systems
Employees may use approved or unapproved phones, messaging applications, shared accounts, or external services for business communications. The organization should identify those channels and determine what it controls, what a vendor can preserve, and what collection or legal steps are appropriate. A hold cannot be effective if the organization ignores a known relevant source merely because it is inconvenient.
Proportionality: preserving enough without preserving everything
Federal Rule of Civil Procedure 26(b)(1) frames discovery around relevance, proportionality, and privilege. The proportionality considerations include the importance of the issues, the amount in controversy, the parties’ relative access to information and resources, the importance of the discovery to resolving the issues, and whether the burden or expense outweighs the likely benefit.
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Those considerations help shape a defensible preservation decision. For example, preserving a small group of sales emails and contract records may be reasonable in a single-customer dispute, while a broad enterprise hold across years of unrelated chat data may be excessive. Conversely, a narrow hold that omits the product system or the people who made the disputed decision may leave a serious gap.
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Rule 37(e)’s advisory material recognizes that ESI exists in large volumes and in multiple locations. The standard is reasonable steps, not perfection. A copy lost from one system may be replaceable from another source, but that possibility should be evaluated rather than assumed. Record the reasoning behind material scope choices, especially where collection is expensive, technically difficult, or disruptive.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.What happens if relevant ESI is deleted?
Rule 37(e) applies when ESI that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps, and the information cannot be restored or replaced through additional discovery. The court then considers whether another party was prejudiced.
Possible measures when there is prejudice
If loss prejudices another party, the court may order measures no greater than necessary to cure that prejudice. The remedy could involve additional discovery, a targeted evidentiary restriction, or another proportionate step.
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More severe measures—presuming the information was unfavorable, instructing a jury that it may or must presume it was unfavorable, dismissing an action, or entering default judgment—require a finding that the party acted with intent to deprive another party of the information’s use in the litigation. A routine deletion, by itself, does not automatically produce sanctions. The court must examine whether preservation was required, whether reasonable steps were taken, whether the information can be restored or replaced, prejudice, and the required level of intent.
Common mistakes and how to correct them
- Waiting for a filed complaint. Ask counsel to assess credible pre-suit threats and developments that make litigation reasonably foreseeable.
- Issuing a generic notice to everyone. Identify likely custodians and systems, then tailor instructions while retaining a practical escalation path for newly discovered sources.
- Sending a notice without changing technical settings. Pair the communication with a review and, where appropriate, suspension of affected auto-delete and recycling rules.
- Preserving email but not other channels. Check messaging, collaboration, mobile, application, paper, and third-party sources used for the relevant work.
- Failing to track acknowledgements. Maintain dates, reminders, questions, and actions so the organization can show how the hold was administered.
- Keeping a hold indefinitely without review. Reassess as claims narrow, matters settle, discovery ends, or counsel determines that the duty no longer applies. Release or modify the hold in documented written instructions.
- Treating preservation as a substitute for legal advice. Software can help send notices and track responses, but it cannot decide when the duty arose or what scope is legally reasonable.
When to seek outside help
In-house counsel should consider litigation or e-discovery counsel when the trigger is uncertain, multiple jurisdictions or regulators are involved, relevant data is dispersed across cloud and mobile systems, a preservation failure may have occurred, or the dispute is likely to require substantial discovery. IT, records-management staff, and business owners should participate because legal staff may not know every system, retention setting, or communication channel in use.
A legal-hold or e-discovery platform can be an optional administrative tool for organizations managing recurring matters, many custodians, acknowledgements, and multiple repositories. It does not determine the legal trigger, replace a tailored scope decision, or guarantee that information has been preserved.
Federal scope and jurisdiction limits
The rules and guidance discussed here concern U.S. federal civil procedure. State courts may apply different rules; regulatory investigations, arbitrations, criminal matters, employment proceedings, public-records obligations, contracts, and sector-specific requirements may add duties. Court orders and local rules can control timing and procedure. Before issuing, narrowing, or releasing a hold for an actual matter, confirm the current applicable rule text and obtain advice from qualified counsel familiar with the relevant forum and facts.
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