Litigation hold
A litigation hold is the process by which a party preserves documents and electronically stored information relevant to pending or reasonably anticipated litigation: a written notice to custodians, suspension of automatic deletion and retention policies, and tracking of compliance. The duty to preserve attaches when litigation becomes reasonably foreseeable, often before a complaint is filed.
Also called: legal hold · hold notice · litigation hold letter · litigation hold memo · preservation notice · document hold
Updated September 6, 2026
How does a litigation hold work?
The duty to preserve does not wait for a complaint. It attaches when a party knows or reasonably should know that litigation is likely: a demand letter, a threatened claim, an internal investigation into a reportable incident. From that point, routine destruction that would otherwise be defensible becomes spoliation.
A hold has three parts. The notice tells identified custodians what to preserve, what not to delete, and whom to contact. The technical suspension disables auto-delete on mailboxes, retention policies on file shares and collaboration platforms, and device wipe on mobile. The tracking records who was notified, when they acknowledged, reminders sent, and the eventual release. The tracking is what a court examines when preservation is challenged.
What does a litigation hold look like in practice?
The core of a hold notice, in plain language:
You are receiving this notice because the company reasonably anticipates litigation concerning the Apex supply agreement. Effective immediately, do not delete, alter or discard any documents or electronic information relating to Apex Logistics, the supply agreement, or deliveries under it, from 1 January 2023 to the present, in any location: email, network drives, OneDrive, Teams, text messages, and paper. This instruction overrides any retention policy. Reply to confirm receipt. Contact [counsel] with questions. This notice is privileged; do not forward it outside the company.
The litigation hold letter guide contains a complete template.
How does a litigation hold show up on an eDiscovery invoice?
Issuing the hold is counsel’s work and is not itself an eDiscovery vendor charge. What the hold triggers is: collection of the preserved sources when discovery begins, and, where a vendor is engaged early to preserve in place, per-custodian or per-source preservation fees. The size of the eventual collection, and therefore every per-gigabyte fee downstream, is set by how precisely the hold scoped the custodians and date range. An over-broad hold is expensive; an under-broad one is dangerous.
Sources
- Fed. R. Civ. P. 37(e) and the 2015 Advisory Committee Notes.
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV), on when the duty to preserve attaches.
- The Sedona Conference, Commentary on Legal Holds, Second Edition.
Related terms
Spoliation · Custodian · Electronically stored information (ESI) · Collection · Chain of custody
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Common questions
Is a litigation hold letter privileged?
The hold notice itself is generally treated as attorney–client privileged or work product, since it is counsel's instruction to the client. Courts have ordered disclosure where spoliation is at issue and the notice's contents bear on the reasonableness of preservation. Safer practice is to draft it on the assumption it may one day be read by an adversary.
How long does a litigation hold last?
Until the matter and any appeal are finally resolved and counsel releases it in writing. Holds are routinely forgotten and left in place for years; the release is as important to document as the issuance.
What happens if you fail to issue a litigation hold?
Loss of relevant ESI after the duty attached is spoliation. Under Rule 37(e), a court may order measures to cure prejudice, and on a finding of intent to deprive may instruct the jury to presume the lost information was unfavorable or enter judgment against the party.