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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 U.S. business should assess whether to issue one when litigation has begun or is reasonably anticipated and potentially relevant information is within the organization’s possession, custody, or control. The trigger and scope depend on the facts; a complaint, angry message, or isolated customer dispute does not automatically require preserving every company record.
Once counsel determines that a preservation obligation may exist, the business should identify likely custodians and systems, send a tailored notice, pause routine deletion that could affect relevant information, verify compliance, and update the hold as the matter develops. This article focuses on U.S. federal civil procedure. State law, regulatory requirements, court orders, sector rules, and non-U.S. law may impose different duties.
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What a litigation hold means
A litigation hold, sometimes called a legal hold, is a preservation process rather than a lawsuit filing, storage device, or particular software product. It tells identified people and relevant parts of the organization to retain information that may relate to specified claims or defenses and not to alter or destroy it while the hold remains active.
The information may be electronic or physical and may exist in many locations: email, business messaging, shared drives, document-management systems, customer or finance databases, collaboration workspaces, laptops, phones, paper files, or other repositories. The hold is concerned with relevance and control, not with one file format.
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The Department of Health and Human Services’ policy for its agency context describes a hold as notifying employees and covered recipients to retain information in the agency’s possession, custody, or control that is relevant to claims or defenses, regardless of format or physical location. That policy is an official example of a process; it is not itself a rule governing every private company.
Federal Rule of Civil Procedure 37(e) addresses lost electronically stored information (ESI), but the rule does not create the underlying duty to preserve. The rule’s advisory material explains that the duty comes from common-law principles when litigation is reasonably foreseeable. A court may therefore need to decide when the duty arose and whether the information was relevant at that time.
When should a business assess or issue a hold?
The practical trigger is reasonable anticipation of litigation
For a U.S. federal civil matter, a business should involve counsel when developments provide notice that litigation is likely and that particular information may be relevant. The assessment should occur before a complaint whenever the facts support that conclusion. There is no universal bright-line event that starts every hold.
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1Repair Windows errors before they cause bigger problems2Scan for outdated or missing drivers - takes under a minute3Clear out junk files and repair common Windows errorsExamples that may warrant an immediate legal assessment include a demand letter identifying a threatened claim, a notice of a likely lawsuit from opposing counsel, a serious contract or employment dispute in which key records are at risk of routine deletion, or an internal event that makes a lawsuit reasonably foreseeable. These are prompts for analysis, not automatic legal conclusions.
A filed complaint is not always the first relevant date
Waiting for service of a complaint can be too late if relevant material was deleted during the preceding dispute. Counsel should consider what the organization knew, when it knew it, the likelihood of litigation, and whether the information could matter to a claim or defense. The relevant preservation period may begin before filing and may differ for different custodians or systems.
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What does not automatically require a company-wide hold
An angry customer, a routine complaint, a demand for a refund, or a speculative possibility of being sued does not automatically mean that every email, text, backup, and database record must be retained. The question is whether the circumstances make litigation reasonably anticipated and identify information likely to be relevant. Counsel should document the reasoning rather than use an indiscriminate “save everything” response.
How to scope a hold without preserving everything
Scope should track the claims and defenses that are reasonably foreseeable and should be proportionate to the needs of the matter. A defensible scope usually addresses five dimensions: people, time, systems, information types, and preservation mechanics.
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List people who created, received, approved, discussed, or managed information related to the dispute. Depending on the matter, that may include executives, sales staff, engineers, human-resources personnel, account managers, finance staff, customer-support agents, or outside contractors whose records the business controls. Do not assume that the most senior employee is the only relevant custodian.
Map where information resides
Work with IT, records personnel, and business leads to identify the systems and locations used by those custodians. Consider email, chat and collaboration tools, shared folders, ticketing systems, phones, laptops, cloud applications, databases, paper files, and removable media when relevant. A system used for the disputed transaction may be more important than a general corporate archive.
Set a reasoned date range
Choose a start date tied to the events, communications, or knowledge that make the dispute foreseeable, and an end date appropriate to the current matter. Different systems may require different technical treatment. Record why significant dates, custodians, or sources were included or excluded so the decision can be explained later.
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Consider replacement copies and accessibility
Information may exist in multiple places. A message in an employee mailbox might also appear in a shared workspace or a transaction database. The existence of a duplicate does not automatically eliminate the need to preserve the original source, but replacement availability is relevant to proportionality and to any later analysis of loss. Consider accessibility, format, volume, storage options, person-hours, and operational burden.
| Scoping question | What to determine | Why it matters |
|---|---|---|
| Who may have relevant knowledge? | Custodians, managers, contractors, and records owners connected to the claims or defenses | Directs notices and avoids relying only on executive or email lists |
| Which date range is relevant? | Events surrounding the dispute and the period when litigation became reasonably foreseeable | Limits preservation while capturing potentially material context |
| Where is the information? | Mailboxes, messaging, devices, shared drives, business systems, cloud services, paper files, and other controlled locations | Routine deletion differs by system and may otherwise remove relevant material |
| Can material be restored or replaced? | Other custodians, repositories, exports, archives, or transaction records containing the same information | Replacement availability is relevant if a source is later missing |
| What is the burden? | Data volume, accessibility, format, storage capacity, person-hours, and disruption to ordinary operations | Supports proportional boundaries under Rule 26(b)(1) |
A practical litigation-hold workflow
The following sequence is a sensible starting process. It is not a federally mandated form or software procedure.
- Open a legal assessment. Ask qualified counsel to evaluate the dispute, likely claims and defenses, the facts indicating that litigation may be anticipated, and the information that could be relevant. Record the assessment date and the people responsible for decisions.
- Build a preliminary information map. Interview business leads and IT or records staff about custodians, systems, retention settings, device replacement cycles, messaging channels, and physical locations. Identify where relevant information is created, stored, copied, and deleted.
- Define the initial scope. Set custodians, date ranges, subjects, systems, formats, and exclusions based on relevance and proportionality. Document significant inclusion and exclusion decisions, including why a source was considered duplicative, inaccessible, or outside the foreseeable issues.
- Issue tailored notices. Send each affected custodian clear instructions describing the dispute or subject matter, the categories and time period of information to retain, the prohibition on alteration or deletion, and a contact for questions. A general initial notice can be useful while facts are being gathered, but known key people and material should receive specific directions.
- Pause conflicting routine processes. Coordinate with IT and records personnel to suspend auto-delete rules, mailbox limits, recycling or wiping of devices, chat expiration, file-retention jobs, and other processes that could remove relevant information. Preserve the settings or change records showing what was paused and when.
- Track delivery and acknowledgement. Keep a record of who received the notice, the date sent, the date acknowledged, reminders, questions, and exceptions. Follow up with custodians who do not acknowledge or who report that they cannot access the identified material.
- Preserve and verify. Use appropriate technical or administrative measures to keep information available in its original or usable form. Verify that the identified repositories are covered and that departing employees, replaced devices, account closures, and vendor changes do not defeat the hold.
- Revisit the hold. Update custodians, systems, date ranges, and instructions as claims, defenses, and facts become clearer. Keep a record of amendments and continue preservation until counsel determines that the obligation has ended or the scope can safely be released.
- Coordinate discovery planning. Once litigation is underway, address preservation and ESI issues with counsel and, where applicable, in the Rule 26(f) conference or under a court’s scheduling and preservation orders.
What a litigation-hold notice should include
A notice should be understandable to the person receiving it and specific enough to guide behavior. It should not assume that a custodian knows which records matter.
| Notice element | Practical content |
|---|---|
| Reason for the hold | A neutral description of the dispute or subject matter and the claims or defenses being considered |
| People and systems covered | The recipient’s role, named projects or accounts, relevant devices, applications, mailboxes, shared locations, and paper files |
| Time period and information types | Applicable dates and examples such as messages, attachments, drafts, tickets, contracts, recordings, spreadsheets, or database entries |
| Required action | Do not delete, overwrite, edit, discard, or move information in a way that could make it unavailable; preserve it in the ordinary course where possible |
| Technical and operational instructions | How to handle auto-delete settings, personal devices used for business, departing employees, and physical records |
| Questions and acknowledgement | A responsible contact, a response deadline, and a way to report missing data, access problems, or newly discovered custodians |
The notice should avoid promising that every item will ultimately be produced. Preservation and later discovery are related but distinct decisions. A hold preserves potentially relevant information; counsel later determines what is responsive, privileged, confidential, or otherwise subject to production rules.
Proportionality: reasonable preservation, not perfection
Federal Rule of Civil Procedure 26(b)(1) frames discovery around relevance, proportionality, and nonprivileged information. The proportionality factors discussed in Department of Justice guidance 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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Rule 37(e)’s advisory material recognizes that modern organizations hold large volumes of ESI across changing systems. It calls for reasonable steps, not perfect preservation of every conceivable copy. A company can make a defensible decision to limit a hold when it has investigated the relevant sources, considered replacement copies and accessibility, and documented why the boundary is reasonable.
Proportionality does not permit ignoring an inconvenient system simply because it is difficult to search. It requires a fact-based balance between likely relevance and the burden of preserving or collecting the information. Escalate uncertain technical or legal judgments to counsel and the people who administer the systems.
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 analysis is sequential and fact-dependent.
| Rule 37(e) consideration | Question for the court | Possible consequence |
|---|---|---|
| Information was lost | Was potentially relevant ESI no longer available? | Proceed to assess preservation and replacement issues |
| Preservation obligation and reasonable steps | Should the information have been preserved, and did the party take reasonable steps? | If reasonable steps were taken, sanctions under this rule may not follow |
| Restoration or replacement | Can the information be obtained from another source or through additional discovery? | If it can be restored or replaced, the rule’s lost-ESI measures may not be necessary |
| Prejudice | Has the loss harmed another party’s ability to litigate? | The court may order measures no greater than necessary to cure the prejudice |
| Intent to deprive | Did the party act with intent to deprive another party of the information’s use in the litigation? | Only with this finding may the court use severe measures such as an adverse presumption, a jury instruction that the information was unfavorable, dismissal, or default judgment |
Deletion after a lawsuit is anticipated does not automatically produce sanctions. Courts examine whether preservation was required, what reasonable steps were taken, whether the information can be replaced, the degree of prejudice, and—before the most severe measures—intent to deprive. Preserve logs, policy settings, communications, and remediation efforts that help explain what happened.
Illustrative business scenarios
Contract dispute with a threatened claim
A customer’s lawyer sends a detailed letter alleging that a service contract was breached and identifying a disputed project. Counsel should promptly assess whether litigation is reasonably anticipated, identify the project team and relevant contract, billing, ticket, and communication systems, and issue a scoped hold if the facts support a preservation duty. A company-wide hold on unrelated customer records would not follow merely from receiving the letter.
Employee complaint that may remain internal
An employee raises a workplace complaint through an ordinary internal channel, with no indication that a lawsuit is likely. The business should follow applicable employment, records, and investigation procedures and consult counsel about preservation. The complaint alone does not establish that every personnel record or company message must be placed under a litigation hold.
Relevant data on a departing employee’s device
If a likely dispute involves an employee who is leaving, the business should tell IT and counsel immediately. Device wiping, account closure, recycling, and transfer of a phone can destroy relevant material even when a notice was sent. The response may include preserving the device or account, identifying business data on personal equipment, and documenting technical steps and limitations.
Maintaining, modifying, and releasing a hold
A hold is not a one-time email. Counsel or the designated legal team should review it as pleadings, defenses, custodians, and data sources change. Add newly identified people and repositories, narrow instructions that prove unnecessary, and issue amendments in a way that preserves the acknowledgement trail.
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Release should occur only after counsel determines that the preservation obligation has ended or that particular information is no longer within scope. Coordinate release with discovery obligations, court orders, related matters, regulatory requirements, and overlapping holds. A released hold should leave an auditable record of its duration, scope, and release decision.
Who should manage the process?
Counsel evaluates the trigger, claims, defenses, scope, proportionality, and release. IT and records staff identify systems, suspend conflicting retention processes, preserve accounts and devices, and verify technical coverage. Business leaders identify projects, customers, employees, and terminology that technical teams may miss. Custodians follow instructions, preserve information in their control, and report questions or gaps.
Larger organizations may use a legal-hold or e-discovery platform to coordinate recurring notices, acknowledgements, custodians, and multiple systems. Such software is an administrative aid; it does not decide when the legal duty arises or what scope is legally defensible.
Important limits on this federal overview
The principles described here center on U.S. federal civil procedure, including Rule 26(b)(1) and Rule 37(e). State courts and laws, regulatory investigations, government requests, arbitration, criminal matters, sector-specific retention rules, cross-border data laws, and court-specific orders may use different standards or deadlines. A business facing an actual dispute or uncertain trigger should obtain advice from qualified litigation or e-discovery counsel familiar with the applicable jurisdiction.
The safest general approach is deliberate rather than automatic: assess whether litigation is reasonably anticipated, preserve information tied to the likely issues, suspend deletion that threatens that information, document reasonable decisions, and update the process as the facts develop.
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