How broad should the scope of a litigation hold be, and can you be sanctioned for over-preserving or under-preserving?

A litigation hold is the duty to suspend routine deletion and preserve information that is potentially relevant to a dispute that is reasonably anticipated or already underway. Getting the scope right is a balancing act: preserve too little and you risk losing evidence; preserve everything indefinitely and you create cost, privacy, and management burdens.

How broad is “broad enough”?

The guiding principle is relevance and proportionality, not “save everything.” A defensible hold typically covers:

• The custodians (people) likely to have relevant information.
• The subject matter and time period tied to the claims and defenses.
• The systems and data sources where that information lives — email, files, messaging and chat apps, databases, mobile devices, and cloud accounts.

Scope is iterative. As you learn more through pleadings and discovery, you narrow or expand the hold. Document your decisions and reasoning so you can show the process was reasonable and made in good faith.

Can you be sanctioned for under-preserving?

Yes. In U.S. federal civil litigation, the Federal Rules of Civil Procedure address the loss of electronically stored information that should have been preserved. Courts generally ask whether reasonable steps were taken to preserve it and whether the lost information can be restored or replaced. The most serious remedies — such as adverse-inference instructions — usually require a finding that a party acted with intent to deprive another of the information. Lesser measures may address prejudice from negligent loss.

Can you be sanctioned for over-preserving?

Over-preservation is rarely “sanctioned” the way spoliation is, but it carries real costs: higher review and storage expense, broader exposure of sensitive data, and conflict with privacy and records-retention obligations. The goal is a targeted, proportional hold — preserve what is potentially relevant, then release the hold when the matter and any appeal periods conclude.

Key takeaways

• Trigger the hold when litigation is reasonably anticipated, not just when filed.
• Tie scope to relevance and proportionality, and revisit it as the matter develops.
• Reasonable, well-documented process is the best protection against sanctions.

Rules and standards vary by jurisdiction — state courts and other countries differ — so confirm the framework that applies and seek qualified legal counsel. For related concepts, see e-discovery.