A litigation hold is the process of preserving evidence once a lawsuit becomes reasonably foreseeable. Done right, it is boring paperwork that never comes up again. Done wrong — or not at all — it becomes the spoliation fight that decides the case. This guide walks through the six steps I use to stand up a defensible hold. For the underlying legal background, see the companion article on the five litigation-hold mistakes that trigger sanctions.
Inputs you need before you start
- • The event that triggered the duty — demand letter, threat, incident, or filing.
- • A working list of people likely to hold relevant information (custodians).
- • A map of where data lives: email, chat, shared drives, phones, cloud apps.
- • Your retention and auto-delete settings for each of those systems.
- • A point of contact in IT who can suspend deletion and image devices.
Mistakes to avoid
- • Waiting for the complaint instead of the reasonable anticipation of it.
- • Leaving auto-delete and backup rotation running.
- • Giving a verbal instruction with no written record.
- • Covering only email and forgetting texts, chat, and personal devices.
- • Sending the hold once and never reissuing or monitoring it.
Step 1: Fix the trigger date and the duty
Write down the date the duty to preserve began. In Florida the trigger is when litigation is reasonably anticipated — a demand letter, an explicit threat, a serious incident, or an internal complaint — not the day you are served. Getting this date on paper matters, because everything you do afterward is measured against it. If in doubt, treat the earlier date as the trigger.
Step 2: Identify custodians and data sources
Build a deliberate list of the people who likely hold relevant information and the systems where that information lives. Go past the obvious inbox: text messages, Slack and Teams channels, personal phones used for work, shared drives, project-management tools, CRM notes, voicemail, and the devices of anyone who has left or is about to leave. A gap here becomes a gap in the record later.
Step 3: Suspend automated deletion
Before anything else, stop the systems that destroy data on a schedule. Suspend email retention purges, backup rotation, and chat auto-expiry for the custodians and sources in scope. Do this in writing with IT, and record what was suspended and when. Courts forgive a routine retention policy; they do not forgive the failure to switch it off once the duty attached.
Step 4: Issue the written hold notice
Send a written litigation hold notice to every custodian. It should name the matter, describe the categories of information to preserve in plain terms, list the systems and devices in scope, state clearly what recipients must not do (no deleting, no wiping, no “cleaning up”), and require a dated acknowledgment. The acknowledgments are not bureaucracy — they are the proof of good faith you will need if preservation is ever challenged.
Step 5: Preserve fragile and departing-employee data first
Some data will not wait for a tidy process. Image the devices of departing employees before IT recycles them. Capture text threads and chat exports that expire. Pull anything sitting on a rotation that could overwrite before the hold fully takes hold. Preserve first, review later — the order matters.
Step 6: Monitor, reissue, and release deliberately
A hold is a living process. Reissue it periodically, confirm acknowledgments, add new custodians as the matter develops, and verify that auto-delete stays suspended through system migrations. When the matter and any appeal window are fully closed, release the hold on a documented decision — never by letting it quietly lapse.
When attorney help is worth it
A defensible hold is process, not luck, and the cost of getting it wrong dwarfs the cost of doing it right. The firm's on-premises eDiscovery and preservation service runs the entire sequence — hold notice, suspension of deletion, and preservation on firm-owned hardware in Jacksonville, Florida — with no cloud vendor in the chain of custody. Service details are at /ediscovery.