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Creating a litigation hold means coordinating a counsel-directed preservation plan—not just sending an email telling employees to keep their messages. When litigation is pending or reasonably anticipated, counsel should assess what information may be relevant, who controls it, and which systems or deletion settings could put it at risk. The organization then needs to notify the right people, apply appropriate technical controls, verify coverage, and maintain the hold until counsel authorizes a change or release.
This guide is general U.S.-oriented information. The trigger, scope, collection method, privacy considerations, and end date depend on the facts, jurisdiction, applicable rules, court orders, and the organization’s systems. Have counsel direct those decisions.
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What a litigation hold does—and when to start one
A litigation hold is a process for preserving information that may be relevant to a dispute. It can cover business email, chat messages, attachments, shared files, and other electronically stored information (ESI). The process typically combines instructions to people who may have relevant information with technical steps to prevent in-scope data from being deleted or altered through ordinary system operations.
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Random freezes, missing sound and display glitches usually trace back to one bad driver. Find and replace yours safely.Free scan · under a minuteDo not wait automatically for a lawsuit to be filed. The preservation duty may arise when litigation is reasonably anticipated and potentially relevant information exists. Counsel should assess the facts, determine whether the duty has arisen, and record the trigger date and rationale. The Federal Rules of Civil Procedure govern civil proceedings in U.S. district courts; Rule 37(e) addresses loss of ESI that should have been preserved in anticipation or conduct of litigation. Other legal duties, court orders, and case-specific requirements may also matter. Consult the current rule text and counsel for the applicable analysis.
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The practical goal is reasonable, good-faith preservation of relevant information—not indefinite preservation of every message across every system. The Sedona Conference’s Principle 3 is consensus guidance, not a statute or court rule; it recommends reasonable, good-faith steps to preserve information relevant to an action and a proactive preservation plan.
How to create and manage the hold
1. Route the issue to counsel and document the trigger
Send a demand, threatened claim, incident, or other warning that could lead to litigation to counsel promptly. Counsel should assess whether litigation is reasonably anticipated, what information may be relevant, and whether a preservation duty has arisen. Record the decision, the date, and the reasons. A complaint filing is not the only possible trigger.
At this stage, avoid promising that a hold is unnecessary simply because a formal claim has not arrived. Equally, do not treat every disagreement or incident as requiring an enterprise-wide, indefinite hold. The determination is fact-specific and belongs with counsel.
2. Define the scope with the business and IT
Before sending notices or changing system settings, identify the dispute’s issues and the likely places relevant evidence resides. Counsel should work with the business and IT to make the scope explainable and proportionate to the matter. Record the reasoning for what is included, excluded, or still uncertain.
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- Issues: the claims, defenses, events, or subjects the hold concerns.
- Custodians: people likely to have relevant information, including former employees and people who changed roles. Identify who may have taken over relevant work or accounts.
- Time period: the relevant date range, if one can be identified from the facts. Do not assume that the full lifetime of a mailbox is necessary.
- Communication sources: business email, shared mailboxes, one-to-one and group messaging, channel conversations, mobile messages, collaboration tools, and relevant attachments or shared files.
- Devices and accounts: business devices and, where applicable, personal devices or accounts used for business, subject to legal authority, privacy requirements, and practical access.
- Deletion and retention processes: auto-delete settings, chat expiration, mailbox lifecycle rules, backups, offboarding, and other processes that may affect information in scope.
Also identify the organization’s control over each source. A platform, vendor, personal account, or device may raise different authority, access, privacy, or technical questions. Do not assume that a source is preserved merely because it is used for work, or that the organization can lawfully collect every copy. Counsel should assess applicable privacy, labor, regulatory, and contractual requirements.
3. Send a specific notice to each custodian
A custodian notice should tell the recipient what to preserve and how to get help. Tailor it to the matter and the person’s likely information; a generic warning may leave employees unsure whether a particular chat, account, attachment, or device is covered. The notice is an instruction, not a substitute for technical preservation.
A counsel-approved notice will generally explain:
- Why the hold is being issued and how the recipient’s work or information may relate to the matter, without disclosing more confidential detail than necessary.
- The approximate time period and subjects in scope.
- The accounts, systems, devices, message types, and files covered, as applicable.
- That the recipient must not delete, alter, or discard relevant messages or files, including material in business-related locations they use.
- That routine cleanup or deletion must stop for information in scope, including applicable chat expiration or mailbox cleanup processes.
- Who to contact with questions, including questions about personal devices, inaccessible accounts, or data that may already have been deleted.
- How to acknowledge receipt, and by when.
For example, a notice might say in plain language: “Preserve business email, chat messages, and related files from [relevant period] concerning [defined subject]. Do not delete or alter potentially relevant material, including messages or files in the systems and accounts listed below. Contact [designated contact] if you have questions or believe relevant information is stored somewhere not listed. Please acknowledge receipt.” Counsel should replace the bracketed descriptions with matter-specific wording, define the systems, and approve the final notice. This example is not a complete legal form.
Track delivery and acknowledgment, and follow up with nonresponders. Issue an updated or replacement notice when custodians, scope, or instructions change. An acknowledgment confirms receipt; it does not prove that all relevant data has been located or technically preserved.
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4. Coordinate technical changes with IT
IT should inventory relevant platforms, tenants, mailboxes, groups, sites, devices, and vendor sources, then identify settings that could delete or overwrite information in scope. Under counsel’s direction, suspend or modify only the relevant deletion or retention processes. Which controls are appropriate depends on the systems and the hold’s scope.
Assign an owner to each technical change. Keep a record of settings before and after the change, who implemented it, when it took effect, any exceptions, and how the result was validated. Preserve evidence of the implementation itself—such as hold status or audit records—without changing the underlying preserved material. If a system is outside the organization’s control or cannot be placed on hold, escalate that limitation promptly to counsel and document the response.
A technical control and a custodian notice address different failure modes. A hold setting cannot identify every location an employee used, while an employee instruction cannot stop a platform’s automatic deletion. The plan should address both and verify that they cover the intended people and data.
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5. Check Microsoft 365 locations if the organization uses Teams
Microsoft 365 is a product-specific example, not a universal method for every email or chat system. Microsoft Purview eDiscovery supports holds on selected content locations, including infinite or query-based preservation and date-range scoping. A hold may take up to 24 hours to take effect, according to Microsoft’s documentation. Confirm the current licensing and administrator requirements before relying on a particular feature: Microsoft says users need appropriate licenses, and query-based, time-bound, or custodian-scoped capabilities may require higher-tier subscriptions or add-ons.
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Teams content is not necessarily stored in one location. Microsoft documents these storage distinctions:
- Channel conversations: stored in the mailbox associated with the Team. Channel files are stored on the Team’s SharePoint site.
- One-to-one and group Chat conversations: stored in the participants’ mailboxes. Files shared in those chats are stored in the sharer’s OneDrive.
As a result, selecting a Team or preserving its channel content does not by itself establish that related one-to-one or group chats and files shared in those chats are covered. Identify the implicated content locations and apply the appropriate holds to them. The right targets depend on the matter and Microsoft 365 configuration.
Microsoft’s Exchange Litigation Hold is a separate mechanism. Microsoft’s Exchange Server documentation says it preserves deleted items and original versions of modified items, including an enabled archive mailbox; it says the setting may take up to 60 minutes to take effect and advises monitoring Recoverable Items capacity. These are product-specific statements, and options, timing, and behavior depend on the environment. They should not be generalized to every Microsoft 365 or Exchange deployment.
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Fix the driver behind crashes, sound loss and screen glitchesFind Drivers →Clear out junk files and repair common Windows errorsFree Scan →Do not assume that a long-term retention policy is interchangeable with a case-specific hold. Microsoft documents multiple retention and hold mechanisms, and a mailbox can have more than one. Before changing or removing a setting, administrators should identify the other applicable policies and holds so they do not inadvertently release information that remains subject to preservation.
How the Microsoft mechanisms differ
| Mechanism | What the cited Microsoft documentation establishes | Timing and eligibility | What to verify for the matter |
|---|---|---|---|
| Purview eDiscovery hold | Can target selected content locations, with infinite or query-based preservation and date-range scoping. Exact location coverage depends on the selected targets and configuration. | May take up to 24 hours to take effect. Appropriate user licensing is required; some capabilities may require higher-tier subscriptions or add-ons. | Which mailboxes, Teams-related locations, sites, or other sources are selected; whether the chosen hold type fits the scope; licensing; status; and whether processing has completed. |
| Exchange Litigation Hold | Exchange Server documentation says it preserves deleted items and original versions of modified items, including an enabled archive mailbox. | May take up to 60 minutes to take effect, according to the cited Exchange Server documentation. Other eligibility details: not stated in that source. | Whether the environment is the documented Exchange Server product, which mailbox and archive are covered, hold status, and Recoverable Items capacity. |
| Long-term retention policy | Microsoft documents it as one of multiple retention mechanisms; the cited material does not establish that it is interchangeable with a case hold. | Not stated in the cited Microsoft documentation. | Which policy applies, how it interacts with other holds, and whether a separate case-specific hold is required. |
The table summarizes the cited product documentation, not legal conclusions. Microsoft interfaces, licensing, features, and processing times can change. Confirm current Microsoft guidance and the organization’s actual configuration before implementation.
6. Verify coverage and maintain the hold
After implementation, verify both the people-facing and technical parts of the plan. Check that notices reached the intended custodians, follow up on missing acknowledgments, and confirm that technical hold status and location coverage match the approved scope. Use appropriate audit or eDiscovery checks without modifying preserved material.
Maintain a matter record with the trigger and scope decisions, custodians, notices and acknowledgments, technical changes, implementation dates, validation results, exceptions, and subsequent updates. Review the hold with counsel as facts or systems change. Watch for:
- Newly identified custodians, departures, role changes, or account transfers.
- Newly identified sources, data migrations, or changes to messaging platforms.
- Retention-policy changes, chat expiration settings, mailbox lifecycle changes, or other system changes that could affect preserved information.
- Implementation failures, licensing changes, exceptions, or capacity issues that affect a hold.
Escalate failures promptly rather than assuming they will correct themselves. A hold that once covered the intended sources can become incomplete if the relevant people, systems, or data locations change.
7. Release or narrow the hold only with authorization
Do not remove a hold or restore ordinary deletion just because a case has become quiet, a custodian has left, or a particular discovery request has been answered. Ask counsel to determine whether the preservation obligation has ended or whether its scope should change. The reviewed legal guidance establishes no universal release timetable.
When counsel approves a release or narrowing, document the decision, identify exactly which custodians and sources are affected, and remove only the corresponding controls. Restore ordinary retention rules where appropriate while preserving any information still covered by another legal, regulatory, contractual, or business requirement. Verify the changes and retain the release record.
Quick Recap
Common mistakes that undermine a hold
- Waiting for a filed complaint: preservation may be required when litigation is reasonably anticipated, before filing.
- Sending a vague notice: recipients need to know which subjects, periods, accounts, systems, and files are covered, and where to ask questions.
- Relying only on employee instructions: routine deletion and expiration settings may continue unless IT addresses them.
- Relying only on a platform hold: relevant information may be in other mailboxes, chat locations, file stores, devices, or accounts.
- Assuming Teams content has one storage location: channel messages, chat messages, and files shared in chats have distinct documented locations.
- Treating a retention policy as a case hold: identify how policies and holds interact before relying on or changing them.
- Failing to verify completion: a configured hold can take time to take effect, may require appropriate licensing, or may omit an intended location.
- Removing the hold without counsel’s approval: release should be a documented decision tied to the continuing preservation obligation and any other applicable requirements.
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