How do I reconcile a litigation hold preservation obligation with a data subject's GDPR right to erasure during active litigation?

When a litigation hold and a data subject’s right to erasure collide, the two obligations are less contradictory than they first appear. Both data protection law and litigation preservation duties recognize that the duty to preserve relevant evidence can lawfully limit, suspend, or delay erasure. The task is to document why preservation prevails and to keep that preservation no broader than necessary.

Why preservation can override erasure

Under the EU GDPR, the right to erasure is not absolute. It does not apply where continued processing is necessary for compliance with a legal obligation or for the establishment, exercise, or defense of legal claims. An active or reasonably anticipated litigation hold typically falls within these exceptions. In US civil practice, the duty to preserve potentially relevant information arises once litigation is reasonably anticipated, and the Federal Rules of Civil Procedure address the consequences of failing to preserve electronically stored information. Deleting data subject to a hold can expose an organization to sanctions or adverse inferences.

A defensible, principle-based approach

• Map the overlap. Identify whether the data the subject wants erased actually falls within the scope of the hold. Erasure obligations still apply to data that is not relevant to the matter.
• Document the legal basis. Record which GDPR exception you rely on and the specific litigation justifying continued retention.
• Apply data minimization. Preserve only what is relevant. Suspend routine deletion for the in-scope data, not the entire data set.
• Notify the data subject. GDPR generally requires telling the requester that erasure is delayed or restricted, and why, even if you cannot detail the litigation.
• Set a release trigger. When the matter and any appeal period close, lift the hold and complete the erasure.

Cross-border caution

Rules differ sharply by jurisdiction. US federal practice, individual state courts, and non-US regimes impose different preservation standards and privacy duties, and some countries’ blocking statutes complicate cross-border discovery. Coordinate counsel, records/IG, and IT early, and treat the decision as a documented, defensible judgment rather than an automatic one.

For broader context, see e-discovery.