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Data Preservation and Legal Holds

Data preservation and legal holds are not just abstract legal concepts; they are critical, proactive measures that directly impact the success or failure of a legal case. The repercussions for failing to properly preserve data can be severe, ranging from monetary sanctions to adverse inference instructions against a party, or even dismissal of the case. Therefore, understanding the nuances of preservation obligations and implementing a robust legal hold process is essential for any organization navigating the complexities of modern litigation.

The defensible disposition of data is a cornerstone of information governance best practices. However, once an organization has a duty to preserve certain sources of data, it must suspend retention and destruction schedules for that data and take steps to ensure that data is preserved by issuing a legal hold.

Failing to properly preserve data related to the case can lead to serious repercussions that jeopardize the entire case itself – that’s how important it can be to issue a legal hold and maintain that hold throughout the lifecycle of the case.

Obligations of Data Preservation

So, what are your obligations for preserving data? And how will courts enforce those obligations? It’s important to understand what guides the courts in determining the obligations of parties to preserve data, and what actions they can take if you fail to adhere to those obligations.

Examples in Which Preservation Obligations May Not Be Met

As we discussed in the Introduction to Ediscovery chapter, spoliation of ESI is defined as the destruction of records or properties, such as metadata, that may be relevant to ongoing or anticipated litigation, government investigation, or audit. There are numerous ways in which a person’s actions can lead to data spoliation, including:

  • Failure to suspend routine document retention/destruction policies for data sets that would otherwise be manually deleted after their retention periods end.

  • Failure to include key internal custodians in the legal hold process, leading to their data potentially being deleted via routine document retention/destruction policies.

  • Failure to extend a legal hold to external data sources under the party’s “possession, custody and control”, such as data from contractors or cloud providers.

  • Failure to suspend timed “auto-delete” mechanisms for communications, such as emails or even text messages on a custodian’s mobile device.

  • Conversion of ESI into a less usable format that strips valuable metadata, such as printing a spreadsheet to a PDF file, where the formulas are not retained.

It’s important to plan ahead and ensure your approach to the preservation of ESI is comprehensive before you have a case; otherwise, key data sources could slip through the cracks of your data preservation plan. All the examples above have led to sanctions motions in case law that can be costly to defend – even if the sanctions motion is denied.

Relevant FRCP Rule

The Federal Rules of Civil Procedure (FRCP) do not explicitly mandate issuing a “legal hold” or use the term directly. However, the obligation to preserve relevant evidence derives from FRCP Rule 37(e) and related case law principles. Here's how the rule and related concepts connect to the duty to issue a legal hold.

FRCP Rule 37(e) addresses the consequences of failing to preserve ESI that should have been preserved in anticipation of litigation.

It applies when:

  • The duty to preserve arose because litigation was reasonably foreseeable.

  • ESI that should have been preserved was lost due to a party's failure to take reasonable steps.

  • The loss cannot be restored or replaced through additional discovery.

These three factors are important to remember because the court standard is reasonableness, not perfection. In many cases, data has been spoliated, but a request for sanctions wasn’t granted because the court ruled that the duty to preserve had not been triggered yet or the steps taken to preserve the data were reasonable or the lost data could be replaced from another source. Understanding what courts expect is key to understanding what they consider to be reasonable efforts to preserve ESI.

When Is the Duty to Preserve Triggered?

So, when is the duty to preserve triggered? Phrases in Rule 37(e) like “anticipation of litigation” and “litigation was reasonably foreseeable” should make it clear that the duty to preserve could be triggered before the case is even filed – sometimes even months before it is filed.

However, there is no bright-line rule on when the duty to preserve is triggered, especially before the filing of the case. But there are examples in case law where courts have determined that the duty to preserve had been triggered pre-litigation.

Demand Letter

When an opposing party sends a demand letter, it typically threatens legal action or details claims that could lead to litigation. For instance, a plaintiff's attorney might issue a demand letter seeking damages for a workplace injury, potentially requesting the preservation of accident reports related to the incident.

Internal Complaints or Investigations

The awareness of internal complaints, incidents, or investigations that could lead to litigation triggers the duty to preserve. For example, if an employee files a formal complaint about harassment or discrimination, it could escalate to a lawsuit, meaning emails and texts between the employee and their supervisor or other co-workers could be key evidence.

Regulatory Notices or Investigations

By receiving a notice from a regulatory body indicating potential enforcement actions or audits, you will likely need to start preserving evidence. If a company is informed by the SEC or FTC of an investigation into its practices – whether the investigation leads to litigation or not,they’ll need to preserve potentially responsive data to requests that they may make.

Injury, Damage, or Incident Reports

Significant incidents that foreseeably lead to claims, such as accidents, product failures, or environmental spills, are a trigger to preserving evidence. As an example, if a customer has a slip and fall in a company’s store, their attorney will request the preservation of surveillance video of the area where the accident occurred before, during, and after the accident.

Termination of Contracts

Consider disputes arising from contract terminations, which often lead to breach-of-contract claims. For instance, if a supplier is notified of a contract termination due to unmet obligations, this might escalate to litigation, particularly if there's a disagreement on whether the termination clauses were satisfied. In such a scenario, ESI to be preserved would include correspondence between the parties and any documents or reports reflecting the supplier's performance quality.

Cease-and-Desist Letters

A party sending or receiving a cease-and-desist letter alleging infringement, defamation, or other legal violations will fall under the duty to preserve. For example, if a company receives a cease-and-desist letter for alleged patent infringement, it will lead to a need to preserve correspondence and specifications of the potentially infringing product or service.

Media Coverage or Public Complaints

Negative publicity or consumer complaints that suggest imminent legal claims, like if a high-profile data breach results in widespread customer complaints, there’ll be a likelihood of class-action lawsuits that require preservation of correspondence, policies and procedures, reports and logs, and more.

Penalties for Failing to Preserve

Earlier, we discussed FRCP Rule 37(e) but we waited to discuss the potential ramifications for failing to preserve ESI until now. Rule 37(e) includes two sub-sections that deal with the penalties for failing to preserve ESI. Again, they are as follows:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Many people assume that the spoliating party must intentionally deprive another party of the information for there to be significant sanctions, but that’s not necessarily the case. If another party is prejudiced by the loss of the information, courts can still issue sanctions that could include monetary sanctions or the ability for the prejudiced party to inform the jury about the spoliated data at trial. So, while negligence (even gross negligence) won’t lead to the most significant sanctions available, there is still plenty of motivation to exercise due diligence during data preservation to avoid the sanctions that can occur.

However, if the spoliating party is found to have intentionally deprived another party of the information, then sanctions can be extremely significant – rising to the level of adverse inference instructions to the jury that the spoliated information can be presumed to have been unfavorable to the spoliating party or even dismissal or default judgment in the case. Intentional destruction of evidence is not taken lightly by the courts.

So, why have legal holds become so important? Legal holds have long been a part of litigation, their critical importance was highlighted in the United States in 2003. During that time, Judge Shira Scheindlin issued five rulings on ediscovery in the landmark case Zubulake v. UBS Warburg, one of which established legal holds (also known as “litigation holds”) as a standard practice. In her ruling, she emphasized that a party must suspend its routine document destruction processes and implement a “litigation hold” to preserve all relevant documents as soon as litigation is anticipated.

Without legal holds, the loss of key information due to routine deletion or destruction can be a costly and frustrating challenge that could undermine the success of a case. Not only that, but well-managed legal holds enable organizations to save considerable time and costs for attorneys and IT teams to spend locating and preserving vast amounts of data that could potentially be relevant. That’s why the legal hold has become an indispensable part of the discovery life cycle to manage discovery efficiently and effectively.

Sanctions requests related to failure to preserve and spoliation of ESI are among the top types of ediscovery disputes every year. According to the 2024 eDiscovery Case Law Report from eDiscovery Assistant, there were at least 1,456 case law rulings involving sanctions requests in 2024 – many of which related to claims of spoliation of ESI.

With so many cases every year involving disputes regarding claims of evidence spoliation, there are many cases to choose from. In addition to the Zubulake case mentioned above, here are some notable cases with preservation and spoliation implications:

Harry Weiss, Inc. v. Moskowitz, No. 10257N, 109435/09 (NY: Appellate Div. May 30, 2013)

The court, finding that “converting the files from their native format to hard-copy form would have resulted in the loss of discoverable metadata”, upheld the defendants’ motion for spoliation sanctions to the extent of precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims. This case illustrates that the failure to preserve metadata is still spoliation of evidence.

Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016)

In this case, the Court granted the motion for an order vacating the motion for sanctions for spoliation of evidence, citing the amendment of FRCP Rule 37(e) since the sanctions motion had been granted, which required a finding of intent to deprive for an adverse inference sanction. This case illustrates how sanctions for spoliation of evidence are treated before and after the 2015 rules amendments.

Williams v. Angie’s List, No. 1:16-00878-WTL-MJD (S.D. Ind. April 10, 2017)

Here, the Court found that the plaintiffs “have met their burden of demonstrating” that the defendant has a legal right to obtain background data in Salesforce and that “Plaintiffs request for production properly seeks documents within Angie's List's ‘possession, custody, or control" under Rule 34(a).’” While this case doesn’t directly involve claims of spoliation, it illustrates that the extent of discovery obligations for organizations extends to cloud-based data sources.

WeRide Corp. v. Huang et al., No. 5:18-cv-07233-EJD (N.D. Cal. Apr. 24, 2020)

In this case, the Court issued terminating sanctions against defendants for several intentional spoliation violations, including beginning to use ephemeral messaging app DingTalk after the case was filed to avoid saving correspondence.

Fed. Trade Comm’n v. Noland, No. CV-20-00047-PHX-DWL (D. Ariz. Aug. 30, 2021)

Here, the Court granted the FTC’s motion for spoliation sanctions over the defendants’ use of ephemeral messaging app Signal and encrypted email platform ProtonMail that began once they learned of the FTC’s investigation, awarding an adverse inference instruction for the defendants’ intent to deprive the FTC of that evidence.

Ace American Insurance Company v. First Call Environmental., LLC, No. 5:21-cv-02331-JMG (E.D.N.Y. Jan. 9, 2023)

In this case, the Court granted the plaintiff’s motion for adverse inference sanctions due to the defendant’s spoliation of Basecamp documents that detailed safety information after a fire that the plaintiffs alleged broke out because the defendant improperly remediated environmentally hazardous substances at the plaintiff’s property. This case illustrates that even lesser known collaboration apps are subject to legal hold.

Hunters Capital, LLC, et al. v. City of Seattle, No. C20-0983 TSZ (W.D. Wash. Jan. 13, 2023)

In this case, the Court issued adverse inference instructions against the defendant for deletion of thousands of text messages by City representatives, including the mayor, police chief and fire chief. This case illustrates the importance of preserving mobile devices in discovery.

Maziar v. City of Atlanta, No. 1:21-cv-02172-SDG (N.D. Ga. June 10, 2024)

Here, the Court found that the defendant’s text message spoliation was not in bad faith, but that the plaintiff was prejudiced under FRCP Rule 37(e)(1), so he ordered denial of the defendant’s pending motion for summary judgment and attorneys’ fees and costs for the plaintiff associated with prosecuting the sanctions motion. This ruling shows that there can still be significant sanctions without intent to deprive.

EEOC v. Formel D USA, Inc., No. 23-11479 (E.D. Mich. Sept. 12, 2024)

In this case, the Court ordered Defendant to “produce the litigation hold notice, the date the notice was sent to employees, and the names of all recipients of the notice” due to spoliation of cellular telephone data. This case shows that a party’s legal hold notice processes may become discoverable if deficiencies in preservation are demonstrated. 

While implementing and maintaining legal holds can be time-consuming and costly, there are several tools and approaches that can help streamline the process of conducting legal holds that should be considered before your litigation case.

Data Mapping

Data mapping is a powerful tool for streamlining legal holds by providing a clear and comprehensive understanding of an organization’s data landscape. It involves identifying and documenting the types of data the organization maintains, where it is stored, and who has access to it.

With a well-maintained data map, legal teams can quickly pinpoint relevant data sources, custodians, and systems when litigation is anticipated, significantly reducing the time and effort needed to implement a legal hold.

This targeted approach helps minimize the potential that critical information will be overlooked while also minimizing the unnecessary inclusion of irrelevant data. In short, data mapping enhances the efficiency and accuracy of legal holds, ensuring compliance while saving time and costs.

In-place Preservation

One of the reasons that Preservation and Collection are at the same level in the EDRM model, is that organizations have historically preserved ESI by collecting a copy of it – often collecting an entire custodian corpus of data to preserve it. While this approach helps ensure comprehensive preservation of ESI, it also drives discovery costs up dramatically in terms of collection, processing, hosting and review.

With organizations increasingly moving to enterprise cloud-based solutions such as Microsoft 365 and Google Vault, many of these solutions are beginning to provide the capability to preserve ESI in place. In-place preservation enables organizations to perform targeted collections and limit the volume of ESI moving to “right-side” EDRM phases (i.e., Processing, Analysis, Review and Production). In-place preservation is gaining acceptance as an efficient and effective alternative to the custodian corpus collections that organizations have typically performed to ensure preservation.

However, there is a caveat to in-place preservation – the decentralization of ESI within custodian collections. For example, the move to the cloud has also dramatically increased the use of hyperlinked files instead of embedded attachments within emails and other messages. While this approach has clear benefits from an information governance standpoint in terms of reducing data redundancy, it creates significant challenges from a discovery standpoint as collection of emails or messages doesn’t automatically include the files being linked (which some refer to as “modern attachments”).

Hyperlinked files not only create collection challenges, they also can create preservation challenges. For example, Microsoft 365 eDiscovery Premium provides the ability to add custodians to a case, then choose the data locations for that custodian (e.g., Mail, OneDrive, SharePoint, Teams, etc.), then configure Hold settings to put custodians on in-place hold, which includes any hyperlinked files they sent, but not hyperlinked files sent to them by other custodians, which could be a potentially critical gap in preservation if those custodians are not also put on hold. It’s important to fully understand the in-place preservation capabilities of your cloud solution before committing to this approach.

Custodian Interviews

Custodian interviews play an important role in streamlining legal holds by providing detailed, firsthand knowledge about where relevant information is stored, how it is managed, and who else might possess it. Through these interviews, legal teams can accurately identify key data sources, such as email accounts, shared drives, cloud storage, or specialized software systems, that are most likely to contain relevant evidence. They help narrow the scope of preservation efforts to include only necessary custodians and data, avoiding over-collection that can lead to increased costs and inefficiencies.

Everlaw legal holds product illustration showing the ease of managing custodians with a direct connection to H.R. tools such as Microsoft Entra ID
Everlaw's legal holds allows users to manage custodians with a direct connection to H.R. tools such as Microsoft Entra ID.

Moreover, custodian interviews can uncover unique or non-obvious information flows within the organization, such as informal communication channels (e.g., use of “shadow IT” messaging apps that aren’t officially approved by the organization) or external data stored with third-party vendors. They also help clarify custodians' roles, ensuring that legal holds are properly tailored to their specific responsibilities and data access. By using insights gained from these interviews, organizations can implement targeted, efficient legal holds that reduce risk, ensure compliance, and save valuable time and resources.

It’s important to note that organizations often start out with a more conservative approach to preservation at the outset of a case, then reduce custodians on legal hold as more information is gathered. Custodian interviews are a key part of this process, as they enable the organization to properly scope the ESI possessed by the custodian, which can not only enable them to decide to remove custodians from legal hold if they are found not to possess potentially responsive ESI, but also provide important information in negotiating the scope of discovery with opposing counsel (and for the court, if the parties can’t agree on scope). Custodian interviews are one of the most under-appreciated discovery best practices in properly scoping your discovery effort.

Once a party reasonably anticipates litigation, they should follow a clear process for scoping the legal hold, implementing the hold, monitoring the legal hold, managing the hold (including adjustments to scope and reminders to custodians), documenting and reporting hold responses, and removing the legal hold from all or selected custodians. Here’s a step-by-step process that can serve as a guide to managing your legal holds.

1. Litigation is anticipated

  • Trigger event

    • Identify when the duty to preserve arises (e.g., litigation is reasonably anticipated, a subpoena is received, or a complaint is filed).

2. Identify relevant custodians and define scope

  • Identify potential custodians

    • Work with legal counsel to identify individuals, departments, or systems likely to have relevant information.

  • Identify potential data sources

    • Include IT personnel to address system-wide preservation (e.g., backups, servers).

  • Prepare interview scripts

    • Develop/customize custodian interview scripts to gather necessary information from potential custodians

  • Interview potential custodians

    • Conduct interviews and document responses.

  • Finalize custodians

    • Based on custodian interviews and other information gathered, finalize a preliminary list of custodians for legal hold.

3. Implement hold

  • Draft the Legal Hold Notice

    • Include a clear explanation of the preservation obligation.

    • Define the scope: data types, timeframes, and systems (e.g., emails, documents, mobile devices, cloud data).

    • Provide specific instructions on suspending deletion or alteration of data.

  • Send the Legal Hold Notice

    • Ensure the notice is clear, concise, and acknowledges the recipient’s role and responsibilities.

    • Use legal hold management tools (e.g., Everlaw) to send notices

  • Preserve System Data Automatically

    • Work with IT to implement holds on dynamic data sources (e.g., emails, databases, cloud systems).

    • Suspend automated deletion policies for affected data repositories where appropriate.

4. Monitor custodian responses

  • Track Custodian Acknowledgment

    • Require custodians to confirm receipt and understanding of the legal hold.

    • Use automated reminders for non-responsive custodians.

    • Provide training to custodians as needed on what data needs to be preserved and how to comply.

  • Leverage Technology for Automation

    • Use legal hold management tools (e.g., Everlaw) to track acknowledgments and automate follow-ups.

    • Implement automated preservation protocols, such as suspending email deletion or altering retention policies.

5. Modify hold, re-notify custodians, and escalate to managers whenever necessary

  • Adjusting Scope

    • Periodically reassess the relevance of preserved data.

    • Modify the legal hold scope as new information arises.

  • Periodic Reminders

    • Send periodic reminders to custodians about their ongoing obligations.

    • Update custodians if the scope of the legal hold changes as a result of negotiations with opposing counsel or determination that selected custodians don’t have relevant or responsive data.

6. Report on hold responses

  • Document the Process

    • Conduct spot checks to ensure custodians and IT teams are complying with the hold.

    • Maintain detailed records of the release, including actions taken to ensure compliance.

    • Use reporting features in legal hold software to track progress and identify gaps.

7. Release custodians from hold

  • Determine When the Duty Ends

    • The duty to preserve ends when litigation is resolved, a settlement is reached, or it becomes clear that litigation is no longer reasonably anticipated.

    • Consult with legal counsel to confirm the duty has expired.

  • Communicate the Release

    • Send a release notice to custodians informing them the hold has been lifted.

    • Specify that normal data retention and deletion policies may resume.

  • Resume Normal Processes

    • Work with IT to lift system-level preservation measures (e.g., email archiving, backup holds).

    • Reinstate routine data deletion and retention schedules.

Here’s an illustration of the high-level workflow associated with this step-by-step legal hold process:

Litigation Holds Flow Chart

Given their importance to the case, the ability to properly issue and manage a legal hold is vital to ensuring that ESI is preserved for discovery. Yet, many organizations make common mistakes in issuing and managing legal holds.

Failing to Properly Scope Custodians

A well-scoped custodian list is critical to ensuring compliance with preservation obligations, minimizing costs, and protecting against claims of spoliation. Failing to properly scope custodians in a legal hold process can have significant consequences for the preservation of relevant evidence, jeopardizing the integrity of the case. If key custodians are overlooked, essential ESI could be lost, which could lead to sanctions like those discussed above. At best, under-inclusion of custodians can require additional legal hold notices and supplementary collection efforts later, increasing complexity and delaying case timelines.

However, over-including custodians who are unlikely to possess relevant information can lead to excessive data collection, review, and data storage, driving up costs.

Conducting thorough custodian interviews enables legal teams to better understand the flow of information within the organization, the specific roles of individuals, and the data sources they use. These interviews help identify not only obvious custodians but also secondary or less apparent individuals who may have critical knowledge or access to relevant records.

It’s also important to note that the scope of custodians often changes over the course of litigation – especially if the parties are negotiating the scope of custodians. It’s often appropriate to start out conservatively in terms of including custodians in your legal holds and selectively removing custodians from the hold during the case if you can successfully negotiate them out of scope or if you find during discovery that one or more custodians don’t possess relevant and responsive ESI. Properly scoping custodians is an ongoing task.

As the volume, variety and velocity of big data in organizations continues to increase rapidly, manual methods for conducting and managing legal holds become more difficult to support. Yet, according to a recent survey of U.S. in-house legal professionals by Everlaw and ACEDS, a majority of corporate law departments (51%) still use email to manage the litigation hold process, and more than a third of them (35%) track legal holds using spreadsheets.

Manual approaches to issuing and managing legal holds create substantial risks of duplicating efforts, miscommunication, and mistakes—such as overlooking custodians, failing to send reminder notices, or losing critical data—while also incurring the cost of diverting time and resources from other essential litigation tasks.

Modern discovery solutions like Everlaw streamline the legal hold process by automating high-risk manual tasks, such as custodian notifications and reminders, reducing costs and time while minimizing the risk of non-compliance due to data deletion or loss.

Failing to Account for Mobile Devices

Another common mistake is failing to account for mobile devices in your data preservation plan or legal holds. Recent estimates suggest that there are approximately 7.21 billion smartphone users globally, representing about 90% of the world’s population. And people in the U.S. spend about four hours and 39 minutes daily on their mobile phones, excluding voice calls.

Yet, in the 2024 State of the Industry report published by eDiscovery Today, nearly four in ten (39.5%) of corporate respondents said that their cases never or rarely involve data from mobile devices.

Percentage of cases involving mobile device data (Source: Statista)

Part of the challenge is the use of bring your own device (BYOD) mobile devices. 82% of organizations have adopted BYOD policies, which has introduced questions regarding “possession, custody and control” of the devices, causing some organizations to de-emphasize mobile device data in discovery.

Mobile devices have become a common ESI source in litigation, yet many legal teams continue to ignore their importance in discovery – consequently, the number of cases involving spoliation of mobile device data continues to rise. It’s important to not only include mobile devices in data preservation plans but also to confirm with custodians that auto-deletion of texts and other messages is turned off.

Failing to Account for Cloud-Based Data Sources

Another data source where organizations have questioned whether it is in their “possession, custody and control” is cloud-based solutions. Parties have argued that cloud-based data sources are not within their control because the data isn’t hosted within their environment.

However, as we saw with the case Williams v. Angie’s List mentioned above, courts have routinely found that organizations have a legal right to preserve and collect cloud-based data sources from platforms like Salesforce. It’s important to ensure that cloud-based data sources are included in any data preservation plan.

Legal teams, especially in larger organizations, often manage numerous active legal holds simultaneously. Ensuring that each custodian fulfills their preservation duties across them all can be a daunting, time-intensive task, particularly for teams relying on manual tools like spreadsheets rather than modern legal hold software.

Overlapping legal holds add another layer of complexity, particularly when legal matters are resolved, and holds need to be lifted. Custodians frequently have responsibilities tied to multiple holds, making it essential to maintain precise, up-to-date records for each hold and its recipients.

By failing to accurately track all holds for a custodian, organizations face the risk of prematurely releasing custodians from their preservation duties, leading to potential spoliation issues in other cases. To paraphrase Yogi Berra, legal holds are never over until they’re over!

When the Obligation to Preserve Is Over

Legal holds aren’t a “set it and forget it” process. Best practices often include a conservative scope to issuing a legal hold at the outset of a case, then adjusting the hold as more information is gathered about custodians to more properly scope the legal hold over time. This means that removing custodians from hold and notifying them of that removal can happen far into the case if it’s determined that there is little or no risk of spoliation of responsive ESI to the case.

Conversely, the end of a case doesn’t automatically remove a custodian from legal hold. While there may no longer be a reason to maintain a hold for them in that case, that custodian may be subject to legal hold in other overlapping cases. This is common, especially with C-Suite employees or other custodians that possess ESI likely to be responsive in several cases.

With those caveats considered, once you can safely remove a custodian from legal hold, it’s important to resume normal retention/destruction policies for that custodian. Adherence to retention/destruction policies as part of a comprehensive information governance program is vital to keeping the scope of legal holds properly managed.

There are numerous sources for legal hold best practices out there – so many of them that it’s easy to become overwhelmed. Here are two sources that provide comprehensive overviews of the legal holds process:

It is essential to promptly identify situations that trigger the duty to preserve, such as impending litigation, investigations, or audits. Organizations must monitor internal and external factors to recognize when litigation becomes "reasonably foreseeable" to avoid potential spoliation claims​.

Legal hold notices should clearly identify the scope of preservation, custodians, and types of information. The notice should avoid overly broad language to ensure focus on relevant information while maintaining proportionality​.

Engaging Key Stakeholders Early

Include all relevant personnel—legal teams, IT, HR, and custodians—early in the process. This ensures everyone understands their role in preserving discoverable information​.

Proportionality in Preservation

Preservation efforts should align with the scope of the legal matter, considering relevance, accessibility, and cost. Over-preservation can lead to unnecessary burdens, while under-preservation risks sanctions​.

Leveraging Technology and Tools

Use technology solutions such as legal hold management software to streamline the issuance of hold notices, tracking acknowledgments, and monitoring compliance​.

Regular Training and Awareness Programs

Regular training ensures that employees understand their obligations regarding legal holds, including recognizing trigger events and complying with preservation requirements​.

Documentation and Tracking

Document every step of the legal hold process, including the issuance of notices, custodian responses, and ongoing compliance. This can provide critical evidence if the preservation process is challenged in court​.

Periodic Review and Updates

As the case evolves, review and update the scope of the legal hold to address new claims, custodians, or types of data. This iterative approach helps ensure continued relevance and compliance​.

Ensuring Compliance Through Monitoring

Regularly monitor compliance with the legal hold by checking whether custodians are adhering to instructions and IT systems are effectively preserving relevant data​.

Role of Counsel in Oversight

In-house and outside counsel should actively oversee the legal hold process, offering guidance, monitoring adherence, and ensuring legal compliance. They play a pivotal role in ensuring that preservation efforts are defensible​.

Dealing with Non-Electronic and Emerging Data Sources

Account for both traditional (e.g., paper documents) and emerging (e.g., social media, cloud storage) data sources to ensure comprehensive preservation. Technological advancements often expand the scope of discoverable information​.

When the obligation to preserve ends, deactivate the legal hold in a systematic and defensible manner. Notify custodians and document the reasoning to close the loop and resume normal data management practices​.

Next Chapter

ESI Protocols and the Meet and Confer Process