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Governance Authority
Category: Investigations and Resolutions

Litigation Hold

Also known as: Legal Hold, Litigation Hold Notice
Simply put

A litigation hold, sometimes called a legal hold, is an instruction requiring an organization or individual to preserve records and electronic data that may be relevant to actual or anticipated litigation. It is typically communicated through a notice directing recipients to stop deleting or altering the specified information until the hold is lifted. The purpose is to ensure potentially relevant evidence remains intact and available.

Formal definition

A litigation hold is a process, generally initiated by legal counsel, that suspends the ordinary handling and disposition of records and electronically stored information (ESI) potentially relevant to pending or reasonably anticipated litigation. The process typically begins with identifying the relevant custodians and data based on the nature of the dispute and the specific claims, followed by issuing a written hold notice directing recipients to preserve the specified materials. In practice, holds may be implemented through custodian instructions and through technical controls, such as platform-level preservation features that retain deleted items and original versions of modified items until the hold is removed. The specific scope, timing, and legal obligations attached to a litigation hold depend on the facts, applicable jurisdiction, and governing procedural rules; this entry is educational and not legal advice.

Why it matters

A litigation hold is the mechanism through which an organization meets its duty to preserve potentially relevant evidence once litigation is pending or reasonably anticipated. When records or electronically stored information (ESI) that should have been preserved are instead deleted, altered, or lost, the organization may face procedural and evidentiary consequences that vary by jurisdiction and governing court rules. The specific obligations, timing, and standards attached to preservation depend on the facts and applicable procedural rules, so the practical stakes are best assessed with legal counsel; this entry is educational and not legal advice.

Beyond the courtroom, the litigation hold sits at the intersection of legal, compliance, and records-management activities. Ordinary retention and disposition schedules generally call for the routine deletion of aging data, and a hold interrupts that routine for the specified custodians and materials. Failing to suspend automated deletion or failing to reach the right custodians can undermine the integrity of the evidence base, which is why the identification step, determining, based on the nature of the dispute and the specific claims, whose data must be preserved, is treated as foundational.

Because the duty typically attaches when litigation is anticipated rather than only when it is filed, timing is often a point of judgment and risk. Organizations generally rely on legal counsel to determine when the obligation is triggered and how broadly to scope the hold, balancing the need to preserve genuinely relevant material against the burden of over-preservation. The appropriateness of any given approach depends on the facts, jurisdiction, and applicable rules.

Who it's relevant to

General Counsel and Legal Teams
Legal counsel generally initiates and owns the litigation hold process, including determining when a preservation duty is triggered, identifying relevant custodians and data, and issuing the hold notice. In-house and outside counsel typically make the judgment calls on scope and timing, which depend on the nature of the dispute, the specific claims, and applicable procedural rules.
Compliance and Records Management Functions
Because a hold suspends the ordinary handling and disposition of records, those responsible for retention schedules and records disposition work closely with legal to ensure routine deletion is interrupted for in-scope materials. Their role is operational support to the legal duty rather than ownership of the underlying preservation decision.
IT and Information Governance Teams
IT teams often implement holds through technical controls, such as platform-level preservation features that retain deleted items and original versions of modified items until the hold is removed. They help translate a legal instruction into enforceable technical measures across the relevant systems.
Custodians and Employees
Individual employees identified as custodians are the recipients of hold notices and are directed to preserve specific records and data and to refrain from deleting or altering them. Their compliance with the notice is central to keeping potentially relevant evidence intact until the hold is lifted.
Boards and Audit Committees
Directors exercising oversight of legal and compliance risk may have an interest in understanding whether the organization has a functioning process for preserving evidence when litigation is anticipated. Their role is generally oversight of the adequacy of the process rather than involvement in the operational execution of any individual hold.

Inside Litigation Hold

Trigger / Duty to Preserve
The obligation to preserve potentially relevant information typically arises when litigation is reasonably anticipated, not only when a complaint is filed. Determining the trigger point is fact-specific and generally requires legal judgment about when a dispute became reasonably foreseeable.
Scope of Preservation
A definition of the categories of information, custodians, systems, and time periods covered. Scope should be reasonable and proportionate to the matter; over-preservation and under-preservation both carry risk, and the appropriate boundaries depend on the facts of each matter.
Hold Notice / Communication
A written instruction, typically issued under the direction of legal counsel, that informs relevant custodians of their preservation obligations and what they must not delete or alter. Effective notices are clear, acknowledged, and periodically reissued.
Custodian Identification
The process of identifying the individuals and data sources likely to hold relevant information. This generally involves coordination between legal, IT, records management, and the affected business functions.
Suspension of Routine Disposition
The interruption of automated deletion, retention-schedule destruction, and data-recycling processes for information within scope, so that ordinary-course disposal does not eliminate relevant material during the hold.
Monitoring and Compliance Tracking
Ongoing steps to confirm that custodians have received, acknowledged, and are following the hold, including reminders and, where appropriate, verification that preservation is actually occurring.
Release / Termination
A documented process for lifting the hold when the matter concludes or the preservation obligation otherwise ends, allowing normal retention and disposition to resume for the affected information.

Common questions

Answers to the questions practitioners most commonly ask about Litigation Hold.

Is a litigation hold only required once a lawsuit has actually been filed?
No. In many jurisdictions, the duty to preserve relevant information is generally triggered when litigation is reasonably anticipated, not only when a complaint is filed or served. This means the obligation can arise earlier, such as when a credible threat, demand, or internal awareness of a likely dispute exists. The precise trigger and its timing depend on the applicable jurisdiction, the facts, and the judgment of legal counsel, so this should not be treated as a bright-line rule. This entry is educational and not legal advice.
Does issuing a litigation hold notice, by itself, satisfy the preservation obligation?
Not necessarily. A hold notice is typically one component of a broader preservation process. Distributing a notice does not, on its own, ensure that relevant information is actually retained; organizations generally also need to identify custodians and data sources, suspend routine deletion or auto-purge processes where appropriate, monitor compliance, and document their steps. The adequacy of any preservation effort depends on the facts and the standards applied in the relevant jurisdiction, and is ultimately a matter for professional judgment.
Who typically owns and directs the litigation hold process within an organization?
Responsibility for initiating and directing a litigation hold generally sits with the legal function, often the general counsel or outside counsel, who assess when the preservation duty arises and define its scope. Implementation, however, is usually collaborative: IT or information governance teams often assist with identifying and suspending deletion of relevant data, and business-unit custodians are typically responsible for preserving material within their control. Allocation of these roles varies by organization, and this description is illustrative rather than prescriptive.
How should an organization determine the scope of a litigation hold?
Scope is generally shaped by the subject matter of the anticipated or pending dispute, the individuals and roles likely to hold relevant information, the relevant time period, and the systems and formats where that information resides. Organizations typically work with counsel to identify custodians and data sources proportionate to the matter. Because over-preservation can be burdensome and under-preservation can create exposure, scoping usually involves professional judgment and may be revisited as facts develop. Specific scoping decisions depend on the facts and applicable requirements.
What kinds of data sources are commonly addressed in a litigation hold?
Holds often need to reach a range of sources, which may include email, documents and files on shared or local storage, messaging and collaboration platforms, mobile devices, and data held by third parties or in cloud services, depending on where relevant information resides. A common practical challenge is suspending automated retention or deletion routines that would otherwise purge relevant material. The specific sources in scope depend on the matter, the organization's systems, and counsel's assessment; this list is illustrative and not exhaustive.
How can an organization demonstrate that a litigation hold was reasonably managed?
Documentation and monitoring are generally important. Organizations often retain records of when and why the hold was issued, who received notices, what sources and custodians were covered, steps taken to suspend deletion, and any periodic reminders or acknowledgments. Ongoing monitoring, updating the hold as circumstances change, and releasing it appropriately when the obligation ends are also commonly part of a defensible process. What is considered reasonable depends on the jurisdiction, the facts, and professional judgment, and this entry does not constitute legal advice.

Common misconceptions

A litigation hold is only required once a lawsuit has actually been filed.
In many jurisdictions the duty to preserve is generally understood to arise when litigation is reasonably anticipated, which can predate the filing of any complaint. The precise trigger depends on the facts and typically calls for legal judgment.
Issuing the hold notice is sufficient to satisfy the preservation obligation.
Sending a notice is only one component. Effective preservation generally also requires suspending routine deletion, identifying custodians and systems, and monitoring compliance over time; a notice alone that is not acted upon may not meet the obligation.
A litigation hold is an IT task that IT owns end to end.
Responsibility is typically shared: legal counsel generally owns the decision on when and how broadly to preserve and the legal judgment involved, while IT and records functions execute technical preservation and suspension steps. Accountability for the legal obligation usually sits with legal rather than IT alone.

Best practices

Establish a documented process for evaluating when litigation is reasonably anticipated so that the duty to preserve is assessed consistently and on a timely basis, with legal counsel making the trigger determination.
Issue clear, written hold notices to identified custodians, require acknowledgement, and reissue or refresh reminders periodically for the duration of the matter.
Coordinate with IT and records management to suspend automated deletion and retention-schedule destruction for information within scope before it is lost in the ordinary course.
Define preservation scope to be reasonable and proportionate to the matter, documenting the custodians, systems, categories, and time periods covered.
Monitor and document compliance with the hold, including custodian acknowledgements and verification steps, to demonstrate that reasonable preservation efforts were taken.
Implement a formal release process so holds are lifted and normal retention resumes only when the preservation obligation has clearly ended, and retain records of the hold's issuance and termination.
Treat these steps as educational guidance only and involve qualified legal counsel for decisions specific to a given matter and jurisdiction.