A legal hold is a process used to protect potentially relevant information from deletion or alteration when litigation, an investigation, or another legal proceeding is pending or reasonably anticipated.
It is also called a litigation hold or preservation hold.
A legal hold commonly includes a written notice instructing employees or other custodians to preserve specified information. However, sending the notice is only one part of the process. The organization must also identify relevant data sources, suspend conflicting deletion practices, monitor compliance, and update the hold when circumstances change.
When Does the Duty to Preserve Begin?
The duty to preserve may begin before a lawsuit is formally filed.
A demand letter, threatened claim, internal complaint, regulatory inquiry, serious incident, or decision to bring a claim may make future litigation reasonably foreseeable.
The exact trigger depends on the jurisdiction and circumstances. Organizations should not assume that preservation can wait until a complaint or subpoena arrives.
The American Bar Association explains that the duty commonly arises when litigation becomes reasonably foreseeable and that counsel should understand the client's information systems and preservation efforts. See the ABA discussion of legal holds and spoliation.
What Information Can a Legal Hold Cover?
The scope of a legal hold should be connected to the issues in the matter.
Potential sources may include:
• Email and attachments
• Text and instant messages
• Shared drives and cloud storage
• Word processing files and spreadsheets
• Databases and business applications
• Mobile phones and computers
• Audio or video recordings
• Social media content
• Paper records
• Backup systems
• Information held by third parties
The relevant information may not be limited to formal documents. Drafts, metadata, comments, message reactions, and system logs may also matter.
Who Is a Custodian?
A custodian is a person who possesses, controls, creates, receives, or manages information potentially relevant to the matter.
Custodians may include employees, former employees, executives, contractors, IT personnel, and outside service providers.
Legal teams should identify custodians based on the facts of the matter rather than job title alone. A person outside the main business unit may still hold relevant communications or records.
A Legal Hold Is More Than a Notice
A legal hold notice should explain the preservation obligation in language the recipient can understand.
It may describe:
• The subject of the matter
• The types of information to preserve
• The relevant time period
• Systems and devices that may contain information
• Actions the recipient must stop or take
• Where to direct questions
• How to confirm receipt
The notice should provide enough detail to guide preservation without disclosing unnecessary legal strategy.
After issuing it, the legal team should track acknowledgments, answer questions, send reminders, and identify new custodians or data sources as the matter develops.
Legal and IT Teams Must Work Together
Legal professionals determine the scope and purpose of preservation. IT personnel help explain where information is stored, how it is deleted, and what technical steps are required to protect it.
A custodian may promise not to delete email, but that promise will not stop a system from automatically deleting messages after a retention period.
Technical measures may be needed to:
• Suspend automatic deletion
• Preserve user accounts
• Protect shared folders
• Secure devices before reuse
• Retain collaboration messages
• Prevent backup data from being overwritten
• Preserve information held by service providers
The process should be documented so the organization can explain what it did and why.
How Long Does a Legal Hold Last?
A legal hold should remain active while the preservation obligation continues.
The end of a hearing, settlement discussion, or internal investigation does not automatically end the duty. Appeals, related claims, regulatory requirements, or continuing proceedings may still require preservation.
Counsel should make the release decision. When the hold ends, custodians and relevant technical teams should receive a clear release notice.
What Happens If Evidence Is Lost?
Loss of relevant information may lead to additional discovery, forensic examination, cost shifting, evidentiary consequences, monetary sanctions, or other remedies.
In U.S. federal civil litigation, Rule 37(e) addresses the loss of electronically stored information that should have been preserved. The current rules are available from the United States Courts.
The consequence depends on matters such as the preservation duty, reasonable steps taken, ability to restore the information, resulting prejudice, and whether there was an intent to deprive another party of its use.
How AI Can Support Legal Hold Work
AI may help organize custodian information, classify records, identify possible data sources, summarize interviews, and locate documents related to the subject of a hold.
It should not decide independently when the duty to preserve begins or ends. It also should not narrow the preservation scope without lawyer review.
Alloomi AI can assist legal professionals with analyzing documents and finding relevant information. Used carefully, this may make it easier to understand the matter and prepare preservation decisions, while responsibility remains with counsel.
Frequently Asked Questions
Is a Legal Hold the Same as a Document Retention Policy?
No. A retention policy defines how information is normally kept and deleted. A legal hold temporarily overrides ordinary deletion when information must be preserved for a specific legal reason.
Does a Legal Hold Apply Only to Electronic Information?
No. It can cover paper documents, physical evidence, and electronically stored information.
Must Every Employee Receive the Hold?
Not necessarily. The notice should reach people who may possess or control relevant information. The list may need to expand as new facts emerge.
Can an Organization Continue Deleting Unrelated Information?
Generally, a legal hold should target potentially relevant information rather than suspend all deletion. The scope should be defined with counsel according to the matter and governing law.
Who Can Release a Legal Hold?
The release should be authorized by counsel or another person responsible for the preservation decision. Custodians should not decide individually that a hold is no longer necessary.
This article provides general educational information and does not constitute legal advice.
