The Ultimate Guide to a Litigation Hold: What Every Business and Individual Must Know

LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.

Imagine you're a librarian, and you hear a credible rumor that a famous historian is coming to research a specific event. Your normal job involves routinely cycling out old newspapers and magazines to make space. But now, knowing the historian is coming, you have a new duty: you must stop shredding anything related to that event. You must carefully set aside every relevant book, photo, and newspaper clipping, even if it's part of your normal cleanup process. If you were to shred a key document now, it wouldn't just be housekeeping; it would be destroying evidence. A litigation hold (often called a legal hold) is the legal equivalent of that librarian's new duty. It's an instruction issued by a company or an individual to preserve all forms of relevant information when a lawsuit is reasonably anticipated or already filed. This order overrides your normal document destruction or data deletion schedules. Its purpose is simple but critical: to prevent the destruction—whether accidental or intentional—of evidence that might be needed for a legal case. Failing to do this can lead to catastrophic consequences in court, a concept known as spoliation.

• Key Takeaways At-a-Glance:
  • A litigation hold is a mandatory directive to preserve all potentially relevant evidence, including emails, documents, and data, when you reasonably expect to be involved in a lawsuit.
  • For an ordinary person or small business owner, a litigation hold means you must immediately stop all routine deletion of documents and electronic data once you believe a legal conflict is on the horizon.
  • Ignoring the duty to preserve evidence can lead to severe court sanctions, including fines, being forced to pay the other side's legal fees, or even the court instructing the jury to assume the destroyed evidence was harmful to your case—a potential lawsuit-killer. adverse_inference_instruction.

The concept of preserving evidence is as old as the law itself. It stems from a fundamental common law principle: a party to a legal dispute should not be able to benefit from destroying evidence relevant to that dispute. For centuries, this was a matter of common sense and judicial discretion, applied to physical documents like letters, ledgers, and contracts. A party that conveniently “lost” a critical document would be viewed with extreme suspicion by the court. The modern era of the litigation hold was born out of the digital revolution. As businesses moved from paper file cabinets to servers, hard drives, and email systems, the nature of evidence changed dramatically. Information became both more voluminous and more fragile. Emails could be deleted with a click, and backup tapes were routinely overwritten. The legal system struggled to keep up. Courts began to see cases where vast amounts of crucial electronically_stored_information (ESI) had vanished, making a fair trial impossible. This led to a series of landmark court decisions and, eventually, critical amendments to the rules that govern the legal process. The most important of these was the 2006 amendment to the federal_rules_of_civil_procedure, which formally recognized ESI as a distinct category of discoverable information and began to shape the rules around its preservation. The story of the litigation hold is the story of the law adapting from a paper world to a digital universe, establishing the high-stakes duty to hit “pause” on data destruction the moment a legal storm appears on the horizon.

The primary rules governing litigation holds in federal court are found within the federal_rules_of_civil_procedure (FRCP), which set the standards for how civil lawsuits are handled in the U.S. federal court system. Federal Rule of Civil Procedure 37(e): This is the heavyweight champion of litigation hold rules. It was specifically amended in 2015 to create a uniform national standard for what happens when electronically_stored_information (ESI) that should have been preserved is lost.

Key Language of FRCP 37(e): “If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.”

Plain-Language Explanation: This rule does two crucial things.

1. First, it establishes a “reasonableness” standard. You don't have to be perfect, but you must take reasonable steps to save important electronic data.
2. Second, it creates a two-tiered system for punishment (sanctions). If you accidentally lose data and it harms the other side, the court can take steps to fix the harm. But if the court finds you intentionally destroyed the data to hide it, it can bring out the ultimate weapons: telling the jury to assume the evidence was bad for you (adverse_inference_instruction) or even ending the case immediately with a default_judgment.

While the FRCP governs federal cases, every state has its own rules of civil procedure. Many states have modeled their rules after the FRCP, but important differences exist.

The duty to preserve evidence is universal, but how that duty is enforced can vary. A company operating nationwide must be aware of these differences, as a lawsuit filed in California could have different eDiscovery expectations than one filed in Florida.

What does this mean for you? It means you cannot have a one-size-fits-all approach. If your business has a presence in multiple states, your litigation hold process must be robust enough to meet the standards of the strictest jurisdictions, like California and New York.

A successful and legally defensible litigation hold isn't just a single action; it's a process with several critical components. Understanding each one is vital to protecting yourself or your business.

The single most important and often most debated element is the “trigger.” This is the event that creates the legal duty to preserve evidence. The duty to preserve does not begin when a lawsuit is filed; it begins much earlier. The legal standard is the reasonable anticipation of litigation. This is an objective test. It’s not about what you *subjectively* believed, but what a reasonable person or business *should have* concluded in the same situation. Relatable Example: Your company manufactures widgets. You receive a letter from an attorney representing a customer who was seriously injured when one of your widgets allegedly malfunctioned. The letter explicitly states they are investigating a claim against you. This is a clear trigger. The moment you receive that letter, your duty to preserve all documents related to that widget's design, manufacturing, testing, and sale has begun. Less Obvious Examples that can be Triggers:

• A former employee makes a verbal threat of a wrongful_termination lawsuit during their exit interview.
• A customer sends a series of increasingly angry emails about a faulty product, mentioning “getting my lawyer involved.”
• You discover evidence that a key employee may be stealing trade secrets for a competitor, making it likely you will need to sue them.
• Your company receives a preservation letter or a subpoena from a government agency like the department_of_justice or the sec.

The key is to be proactive. If a situation feels like it could escalate into a lawsuit, it's far safer to issue a hold too early than too late.

Once a hold is triggered, the next question is: what do you have to preserve? The scope must be broad enough to be legally defensible but not so overly broad that it paralyzes your organization. The scope covers two areas:

1. Subject Matter: You must preserve information “relevant” to the legal dispute's claims and defenses. This includes information that could both help and hurt your case. You cannot cherry-pick. For the widget example, this would include design blueprints, test results (both good and bad), marketing materials, and customer complaints.
2. Types of Information: The duty applies to all forms of evidence.
   • Electronically_Stored_Information (ESI): This is the biggest category for most modern businesses. It includes:
     • Emails and attachments
     • Word documents, Excel spreadsheets, PowerPoint presentations
     • Databases (e.g., sales records, customer information)
     • Data from collaboration platforms like Slack, Microsoft Teams, and Asana
     • Voicemails and text messages on company-issued phones
     • Social media posts on company accounts
     • Cloud storage files (Google Drive, Dropbox, OneDrive)
     • Website data and analytics
   • Physical Documents: Paper files, contracts, handwritten notes, memos, and logbooks.
   • Physical Evidence: In a product liability case, this would mean preserving the actual widget in question.

Defining the scope is a critical step that should be done in consultation with legal counsel.

A litigation hold isn't a state of mind; it's a series of concrete actions.

1. The Litigation Hold Notice: This is the primary tool of implementation. It is a formal, written document sent to all individuals who may have relevant information. These individuals are known as custodians.
2. Identifying Custodians: A custodian is any person who has control over or possession of potentially relevant information. This includes not just the main players but also their assistants, supervisors, and relevant IT staff.
3. Communicating with IT: It is absolutely essential to notify your IT department immediately. They need to suspend all automatic data destruction protocols (e.g., auto-deleting emails after 90 days, overwriting backup tapes) for the identified custodians and data sources.
4. Follow-Up and Monitoring: Issuing the notice is not enough. You must take reasonable steps to ensure it is being followed. This includes sending periodic reminders and getting written confirmation from custodians that they have received and understood the hold.

A common question from business owners is, “How long do I have to do this?” The answer is simple, but often frustrating: the litigation hold must remain in effect until the legal matter is fully resolved. This means the hold continues until:

• The statute_of_limitations for the potential claim has expired and no lawsuit was filed.
• A lawsuit was filed, but it has been dismissed and all appeals are exhausted.
• The parties have reached a settlement_agreement, and the agreement explicitly states that the hold can be lifted.

You cannot lift the hold unilaterally just because things have been quiet for a few months. Lifting a hold prematurely can be just as damaging as failing to issue one in the first place. Always get clearance from your legal counsel before releasing a hold.

• In-House Counsel / Management: For businesses, this is the team responsible for recognizing the trigger, defining the scope, and directing the implementation of the hold.
• Outside Legal Counsel: Your attorneys are essential partners. They will provide the definitive legal advice on the trigger, scope, and duration of the hold and will draft the official litigation hold notice.
• IT Department: These are the soldiers on the front lines of preservation. They are responsible for the technical work of suspending auto-delete functions, preserving server data, and collecting ESI from custodians' devices.
• Custodians: These are the employees or individuals who have the relevant information. They have a personal duty to comply with the hold notice and preserve their data. Failure to do so can have consequences for both them and the company.
• The Opposing Party: Their lawyers will scrutinize your preservation efforts. If they suspect any data has been lost, they will file motions with the court demanding to know what you did, when you did it, and why any information is missing.
• The Judge: The ultimate umpire. The judge will decide if your preservation efforts were “reasonable” and will be the one to impose sanctions if they were not.

The moment you reasonably anticipate litigation, the clock starts ticking. Acting quickly and methodically is your best defense against later accusations of spoliation.

1. Recognize the Trigger: As soon as a credible threat or potential claim arises, treat it seriously. Don't dismiss it as posturing.
2. Contact Legal Counsel Immediately: This is not a DIY project. Your first call should be to your lawyer. They will provide privileged guidance and help you navigate the next steps without making critical errors. All communications with your attorney about the legal threat are protected by attorney-client_privilege.
3. Identify Key Players: With your counsel, start a preliminary list of the key people involved in the dispute. Who are the most likely custodians of relevant information?

1. Brainstorm Relevant Topics: Work with your lawyer to outline the potential claims and defenses. What subjects, projects, products, and time periods are relevant?
2. Map Your Data: Where does your information live? Create an inventory of data sources. Think beyond the obvious.
   • Email Servers (e.g., Microsoft 365, Google Workspace)
   • Employee Laptops and Desktops
   • Company-Issued Mobile Phones and Tablets
   • Cloud Storage (Dropbox, Google Drive, etc.)
   • Collaboration Tools (Slack, Teams)
   • Proprietary Databases (CRM, Accounting Software)
   • Physical Files and Storage Rooms

1. Drafting: Your lawyer should draft the formal notice. It must be clear, easy to understand, and unambiguous.
2. Distribution: Distribute the notice to all identified custodians. Use a system that allows you to track who has received and opened the email.
3. Get Confirmation: Require each custodian to provide a written acknowledgment that they have received the notice, understood their obligations, and will comply. This creates a defensible record of your efforts.

1. Instruct IT: Provide the IT department with a copy of the hold notice and a clear list of custodians and data sources.
2. Suspend Auto-Deletion: Direct IT to suspend all routine data destruction policies for the specified data and custodians. This is a critical technical step.
3. Preserve and Collect (If Necessary): Depending on the situation, your lawyer may advise making forensic copies of certain key custodians' hard drives or email accounts to create a “snapshot in time.”

1. Send Reminders: People are busy and forgetful. Send periodic reminders (e.g., quarterly) to all custodians that the hold is still in effect.
2. Manage New Employees and Departures: Have a process for adding new employees to the hold if they become involved in the relevant subject matter. Crucially, have a procedure for when a custodian leaves the company to ensure their data is preserved before they depart and their devices are not wiped.
3. Document Everything: Keep a detailed log of every step you took: when the hold was issued, who it was sent to, when you received acknowledgments, what instructions were given to IT, etc. This documentation is your best defense if your preservation efforts are ever challenged in court.

While many documents are involved in litigation, the cornerstone of this process is the hold notice itself.

• The Litigation Hold Notice: This is not a standardized government form but a custom document drafted by your lawyer. Its purpose is to officially inform custodians of their duty to preserve evidence.
  • Purpose: To clearly communicate the preservation obligation to employees.
  • Key Contents:
    • A clear statement that a litigation hold is now in effect.
    • A description of the subject matter of the dispute (without revealing privileged legal strategy).
    • A non-exhaustive list of the types of information to be preserved (emails, documents, etc.).
    • An explicit instruction to suspend all deletion or destruction of this information.
    • Contact information for a specific person (usually in the legal department) to whom questions should be directed.
    • A section for the custodian to sign and return, acknowledging receipt and understanding.
  • Source: This is drafted by your attorney. There are many templates online, but you should never use one without having it tailored to your specific situation by qualified counsel.

Court rulings, not just statutes, have defined the modern litigation hold. These cases serve as cautionary tales for any business.

1. The Backstory: Laura Zubulake, a Wall Street equities trader, sued her former employer, UBS Warburg, for gender discrimination and retaliation. Zubulake claimed that key evidence supporting her case existed in the emails of her colleagues.
2. The Legal Question: What is the scope of a company's duty to preserve and produce electronic evidence, like emails? And what is the proper sanction when a company fails in that duty?
3. The Court's Holding: Judge Shira Scheindlin of the Southern District of New York issued a series of five groundbreaking opinions that became the bible of modern eDiscovery. She articulated the “Zubulake Standards,” which established that:
   • The duty to preserve is triggered by “reasonable anticipation of litigation.”
   • Companies must place a litigation hold on relevant data and communicate this to key players.
   • Lawyers have a duty to oversee compliance with the hold, not just issue it and forget about it.
   • Crucially, the court found that UBS had intentionally destroyed relevant emails *after* the hold was in place and had failed to locate relevant backup tapes. As a sanction, the judge gave the jury an adverse inference instruction, telling them they could infer that the emails UBS destroyed would have been unfavorable to the company.
4. Impact on Today: The *Zubulake* rulings are arguably the most important eDiscovery decisions in U.S. history. They put every company in America on notice that courts would take the preservation of electronic data extremely seriously. The case established the playbook for how to implement a litigation hold and the dire consequences of failing to do so.

1. The Backstory: Investors sued Banc of America (and others) related to the collapse of a hedge fund. The plaintiffs alleged that the defendants had lost or destroyed critical evidence.
2. The Legal Question: What level of fault is required to justify sanctions for spoliation? Do you have to act in bad faith, or is being merely careless (negligent) enough?
3. The Court's Holding: Judge Scheindlin (again) ruled that a failure to issue a written litigation hold constitutes gross negligence. She created a framework where the level of fault (negligence, gross negligence, or willfulness) determined the severity of the sanction. This ruling sent a shockwave through the legal community, suggesting that even unintentional but serious mistakes could lead to harsh penalties.
4. Impact on Today: While the 2015 amendments to FRCP 37(e) have since created a more uniform national standard that focuses on “intent” for the most severe sanctions, the *Pension Committee* case highlights the immense importance of having a formal, written litigation hold process. It solidified the idea that simply “doing nothing” is a form of gross negligence that courts will not tolerate.

The core principles of the litigation hold are established, but the battlegrounds are constantly shifting with technology.

1. Ephemeral Messaging: How do you preserve data from applications like Slack, WhatsApp, or Signal, where messages can be designed to disappear automatically? Courts are increasingly holding that companies have a duty to disable auto-delete features or find ways to capture this data once a hold is triggered. The argument “the app deleted it automatically” is no longer a valid excuse.
2. “Bring Your Own Device” (BYOD) Policies: When employees use their personal phones or laptops for work, it creates a preservation nightmare. The company has a duty to preserve relevant work data, but the employee has a right to privacy over their personal information. This conflict creates immense technical and legal challenges, and courts are still developing clear rules for how to handle it.
3. Proportionality in Discovery: A major debate revolves around the cost and burden of preservation. A litigation hold can be enormously expensive. The principle of proportionality in the FRCP states that the cost of discovery should not be out of proportion to what is at stake in the lawsuit. Defendants often argue that preserving and searching every possible source of data is unduly burdensome, while plaintiffs argue that all relevant evidence must be saved, regardless of cost.

The next decade will see even more dramatic changes to the landscape of data preservation.

1. The Internet of Things (IoT): As more devices are connected to the internet—from smart home assistants and cars to industrial sensors—the scope of potentially relevant ESI is exploding. In a future car accident case, the litigation hold might need to cover data from the car's onboard computer, the driver's smartphone, and even city traffic sensors.
2. Artificial Intelligence (AI): AI will be a double-edged sword. On one hand, AI-powered software is becoming essential for helping companies search through massive volumes of data to find what is relevant, making the discovery process more efficient. On the other hand, if AI systems are used to make business decisions, the data and algorithms behind those decisions could themselves become discoverable evidence, creating new and complex preservation challenges.
3. Data Privacy Regulations: The rise of laws like the GDPR in Europe and the california_consumer_privacy_act (CCPA) gives individuals more rights over their data, including the “right to be forgotten.” This creates a direct conflict with a company's legal obligation to preserve data for a litigation hold. Navigating the tension between the duty to preserve and the duty to delete under privacy laws will be a major legal challenge in the coming years.

• adverse_inference_instruction: A severe court sanction where the judge tells the jury it may or must assume that evidence an opposing party destroyed would have been unfavorable to them.
• custodian: An individual who has possession, custody, or control of information that may be relevant to a legal matter.
• data_preservation: The process of maintaining and protecting data from being altered or deleted, a core component of a litigation hold.
• document_retention_policy: A company's established schedule and rules for how long different types of documents are kept in the ordinary course of business. A litigation hold overrides this policy.
• eDiscovery (Electronic Discovery): The legal process of identifying, preserving, collecting, processing, reviewing, and producing electronically stored information (ESI) in a lawsuit.
• electronically_stored_information (ESI): The legal term for any data that is created, manipulated, communicated, or stored in digital form.
• federal_rules_of_civil_procedure (FRCP): The set of rules that govern how civil lawsuits are conducted in U.S. federal courts.
• legal_hold: A term used interchangeably with “litigation hold.”
• proportionality: A legal principle requiring that the cost and burden of discovery should not be out of proportion to the amount at stake and importance of the issues in a case.
• sanctions: Penalties imposed by a court on a party for violating a rule or court order, such as for failing to preserve evidence.
• spoliation: The intentional, reckless, or negligent destruction, alteration, or concealment of evidence relevant to a legal proceeding.
• statute_of_limitations: A law that sets the maximum time after an event within which legal proceedings may be initiated.
• subpoena: A formal writ ordering a person to attend a court or to produce documents or other evidence.

• eDiscovery
• spoliation
• federal_rules_of_civil_procedure
• attorney-client_privilege
• civil_procedure
• evidence_(law)
• lawsuit