Legal Holds: What to Do When Litigation Is Likely

A legal hold, sometimes called a litigation hold or preservation notice, is an instruction to stop deleting records that may be relevant to a dispute. The duty to preserve usually begins not when proceedings are issued but when litigation or an investigation becomes reasonably likely. When exactly that point arrives, and what happens if you miss it, depends on your jurisdiction, so take local advice. The practical steps are broadly the same everywhere.

Recognise the trigger

Common triggers: a letter before action, a formal complaint that mentions lawyers, a regulator's inquiry, an employee grievance that alleges discrimination, an insurance claim, or an internal discovery of something likely to end in a dispute. Record the date you became aware and who decided that a hold was needed. That date may later be scrutinised.

Scope the hold

A hold that covers everything is impossible to follow; one that is too narrow misses what matters. Define it by:

• Subject matter: the transaction, tenancy, employee, project or incident.
• People: the custodians likely to hold relevant material, including those who have left.
• Date range: from when the relevant events began.
• Record types and locations: case records, email, files, chat, phone photos, paper, backups.

Issue the notice

Send a short written notice to each custodian: what the matter is, what to preserve, where it might be, that deletion and alteration must stop, that the hold overrides normal retention, and who to ask. Get an acknowledgement from each person and record it. Remind them periodically for long-running matters.

Suspend routine deletion

This is the step organisations most often miss. Retention schedules, mailbox clean-ups, automatic trash emptying and device replacement all keep running unless someone stops them for the affected records. List every automatic deletion process that could touch the scope and suspend it, or move the records beyond its reach. Our guide to how long to keep a closed case explains retention; a hold is the documented exception to it.

Preserve, do not rearrange

Preserve records as they are. Do not tidy, rename, annotate or re-save them, because that can change the metadata that shows when they were created or modified. If you need working copies, make copies and keep the originals untouched.

Using your case system

Herarx has no special legal-hold switch, but its ordinary features cover much of the practice. Open a case for the hold itself: the scope, the custodians as contacts in roles, the notices and acknowledgements as files, review dates as tasks. The related matters can be tagged so they are easy to find. Anything deleted goes to Trash for 30 days rather than disappearing, and Deletion Protection requires a confirmation code before permanent deletion, which is a useful backstop while a hold is live. We covered that design in deletion protection and the 30-day trash. The timeline and audit log show what was done to each record and when.

Release the hold

When the matter is finally resolved, including any appeal period, release the hold in writing, tell the custodians, and resume normal retention. Record the release date and the decision. Records kept only because of the hold should then be disposed of on schedule, not left indefinitely.