Your duty to preserve evidence starts before anyone files a complaint. It begins the moment litigation is reasonably anticipated, which can be the day a demand letter arrives, a regulator sends an inquiry, or a senior manager emails a colleague that a departing customer “will probably sue.”
A legal hold is the process you use to meet that duty: identifying who and what holds relevant information, instructing them to keep it, and making sure your systems stop deleting it. Courts judge the process, not just the outcome, so a documented, repeatable legal hold is one of the cheapest forms of litigation risk management an in-house team has.
Why Courts Care About the Process
US courts have treated preservation failures seriously since the Zubulake v. UBS Warburg decisions in the early 2000s, which made clear that counsel must actively oversee preservation rather than simply send a memo. Federal Rule of Civil Procedure 37(e), amended in 2015, now governs lost electronically stored information. If a party failed to take reasonable steps and the data cannot be recovered, the court can order measures to cure the prejudice, and if the party acted with intent to deprive the other side, the court can instruct the jury to presume the lost information was unfavorable or even end the case.
The standard is reasonableness, not perfection. A company that can show when it identified the trigger, who received the notice, which systems it suspended, and how it tracked compliance is in a far stronger position than one that sent a single email and moved on.
The Legal Hold Process, Start to Finish
Identify the trigger and the scope
Document the date and the event that made litigation reasonably foreseeable. Then define the scope: the subject matter, the relevant date range, the custodians (the people likely to hold relevant information), and the data sources, from email and shared drives to messaging apps, CRM records and personal devices used for work.
Issue a clear hold notice
Write the notice in plain language. Tell custodians what the matter concerns in general terms, which categories of documents and data to keep, that the duty overrides normal retention policies, and whom to contact with questions. Require a written acknowledgment from every recipient and record it.
Suspend automatic deletion
A notice alone does not stop systems from deleting data. Work with IT to apply holds at the system level, including mailbox and collaboration-platform holds in tools such as Microsoft 365 or Google Workspace, and suspend auto-delete settings on chat tools. Pay particular attention to departing employees, whose laptops and accounts are often wiped within days of their exit.
Preserve high-risk sources early
Some data disappears faster than a notice can protect it. Collect or image the devices and accounts of key custodians early, especially when the matter involves ephemeral messaging, text messages or contractors who use their own equipment.
Monitor, remind and update
Send periodic reminders, add custodians as the matter develops, and keep a log of every action. A legal hold that ran for two years with no reminder is hard to defend.
Release the hold
When the matter ends and no related claim is pending, formally release the hold and tell custodians that normal retention schedules apply again. Over-preservation has its own cost in storage, privacy exposure and future discovery burden.
Where Legal Holds Usually Fail
Most preservation problems come from gaps between legal and IT. Legal sends the notice, but nobody suspends the email deletion policy, or the new collaboration tool the sales team adopted last year is not on anyone’s list of data sources.
Other common failures include missing custodians who joined the matter late, relying on employees to preserve their own messages on personal phones, and having no record of who acknowledged the notice. A short checklist owned jointly by legal and IT prevents most of them.
When to Bring in Litigation Support
A small matter with five custodians is manageable in-house. A regulatory inquiry or multi-party dispute with dozens of custodians, several jurisdictions and millions of documents is a different workload, and it usually arrives without warning.
That is when you need litigation support that can scope custodians, coordinate collection and run document review at volume, while your team keeps control of strategy. For a regulatory investigation, speed matters even more, because preservation obligations attach as soon as the inquiry lands.
LawFlex matches vetted litigation and eDiscovery lawyers to your matter typically within 24 hours, with document review capability in 21+ languages and no long-term contract, so you can scale the team to the matter and release it when the matter closes.
FAQ
What is the difference between a legal hold and a litigation hold?
There is no practical difference. Both terms describe the process of suspending normal document destruction and preserving information relevant to pending or reasonably anticipated litigation or investigations.
When should a legal hold be issued?
As soon as litigation or a government investigation is reasonably anticipated. Common triggers include a demand letter, a subpoena, a regulator’s inquiry, a credible threat of a lawsuit, or an internal complaint likely to lead to a claim.
How long does a legal hold last?
Until the matter is fully resolved, including any appeals, and no related claims are reasonably anticipated. In-house counsel should then formally release the hold so normal retention schedules resume.
Does a legal hold apply to text messages and chat apps?
Yes. Any form of information relevant to the matter is covered, including text messages, messaging apps and collaboration tools. Because these sources are easy to delete, name them specifically in the hold notice and preserve them at the system or device level where possible.
