What is a litigation hold?

A litigation hold — also called a legal hold or preservation hold — is a directive to stop the routine destruction of records that may be relevant to reasonably anticipated or active litigation, an investigation, or an audit. Once a hold is in place, the affected records must be preserved even if their retention period would otherwise call for disposition.

When the duty arises

The obligation to preserve generally begins when litigation is reasonably anticipated — not only when a lawsuit is filed. That can be triggered by a demand letter, a credible threat, an internal awareness of a dispute, or notice of a regulatory action. Once the duty attaches, the organization must act to preserve relevant records.

What a hold involves

An effective litigation hold typically requires:

• Identifying custodians — the people likely to hold relevant records.
• Identifying the relevant records and systems — email, documents, messages, databases, and backups.
• Issuing the hold clearly to custodians and IT, instructing them to preserve.
• Suspending automated deletion for the affected records.
• Documenting the hold and monitoring compliance until it is released.

Why it is critical

Litigation holds are the safety valve that makes defensible disposition possible: an organization can confidently destroy records on schedule precisely because it can reliably suspend that destruction when preservation is required. Failure to preserve relevant records after the duty arises is spoliation, which courts can punish severely — with monetary sanctions, adverse-inference instructions to the jury, or worse.

Holds and good governance

A reliable hold process is a hallmark of a mature information governance program. It depends on knowing what records exist and where (a records inventory helps), being able to suspend disposition system-wide, and coordinating closely between legal, IT, and records management. Done well, holds protect the organization; done poorly, they are a frequent source of costly legal trouble.