Legal Hold

A legal hold (also called a litigation hold or preservation hold) is a formal instruction requiring an organization to suspend routine document destruction and preserve all potentially relevant information.

When Legal Holds Apply

Legal holds are triggered when litigation or investigation is:

• Pending: A lawsuit has been filed
• Reasonably anticipated: Pre-litigation indicators exist
• Ongoing: Government investigation or regulatory inquiry
• Requested: Third-party subpoena or preservation demand

The Preservation Obligation

Organizations must preserve:

Electronic Data

• Emails and attachments
• Documents on shared drives and cloud storage
• Database records
• Text messages and instant messages
• Social media content
• Voicemails

Physical Materials

• Paper documents and files
• Physical evidence
• Backup tapes and storage media

Legal Hold Process

1. Identification

• Determine the scope of the hold
• Identify relevant custodians (people with relevant data)
• Define relevant date ranges and subject matter

2. Notification

• Issue written hold notices to all custodians
• Explain what must be preserved
• Provide clear instructions on compliance
• Require acknowledgment of receipt

3. Implementation

• Suspend auto-deletion policies for relevant data
• Preserve backup systems
• Collect and secure critical materials
• Modify retention schedules as needed

4. Monitoring

• Send periodic reminders to custodians
• Track acknowledgments and compliance
• Update hold scope as litigation evolves
• Document all preservation activities

5. Release

• Formally release the hold when no longer needed
• Resume normal retention policies
• Document the release decision

Consequences of Failure

Failing to preserve evidence (spoliation) can result in:

• Adverse inference instructions: Jury told to assume destroyed evidence was harmful
• Monetary sanctions: Fines and penalty payments
• Case dismissal or default judgment: In extreme cases
• Professional discipline: For attorneys who fail to advise clients

Best Practices

1. Act quickly: Issue holds as soon as litigation is reasonably anticipated
2. Be specific: Clearly describe what must be preserved
3. Cast a wide net: Include all potentially relevant custodians
4. Document everything: Create an audit trail of all preservation activities
5. Use technology: Legal hold software automates notices, tracking, and reminders