What Is a Preservation Notice or Litigation Hold?

A preservation notice, often called a litigation hold, is a written instruction to protect potentially relevant documents and electronically stored information (ESI) from deletion or alteration. In the United States, the duty to preserve can arise before a lawsuit is filed, once litigation is reasonably anticipated. Knowing when to issue a hold, what information to preserve, and how to document compliance can help organizations meet legal obligations and avoid costly discovery disputes.

What Is a Preservation Notice?

A preservation notice is a communication telling people or organizations to retain information that may relate to a legal claim, investigation, or dispute. It may be sent by a party’s attorney, an organization’s legal department, or a person seeking to alert another party to a potential claim. The term is sometimes used interchangeably with “litigation hold,” but the phrases can describe different things.

A litigation hold is usually an organization’s internal process for preserving relevant information. A preservation notice may be the written notice that starts or supports that process. For example, a company’s legal team might issue a litigation hold notice to employees who may have relevant emails, texts, files, or other records.

A preservation notice is not the same as a subpoena or discovery request. A notice may communicate a preservation duty or request that information be retained, but it does not, by itself, compel a recipient to produce records. A subpoena or court order may impose separate legal obligations.

When Does the Duty to Preserve Begin?

Under U.S. law, the duty to preserve evidence generally begins when a party reasonably anticipates litigation, not only when a complaint is filed. The precise point depends on the facts. A credible threat of a lawsuit, a serious incident likely to generate claims, or an attorney’s demand letter may make litigation reasonably foreseeable. Routine business disagreements do not automatically create a preservation duty.

The legal standard is fact-specific. Relevant considerations may include the seriousness of an event, the parties’ communications, whether a claim has been asserted, and whether a lawsuit appears likely. Organizations should involve counsel promptly when circumstances suggest a dispute could lead to litigation. Waiting for formal service of a complaint can be too late if relevant information has already been deleted.

Federal Rule of Civil Procedure 37(e) addresses lost ESI that should have been preserved in anticipation or conduct of litigation. The rule applies when information is lost because a party failed to take reasonable steps to preserve it and the information cannot be restored or replaced through additional discovery. Available remedies depend on the resulting prejudice; the most severe measures require a finding of intent to deprive another party of the information’s use in the case.

State courts may apply different rules or standards, and special requirements can apply in particular proceedings. Counsel should assess the governing jurisdiction, claims, and circumstances rather than assuming that one federal rule resolves every preservation question.

What Information Should a Litigation Hold Cover?

The hold should cover information that is relevant to the anticipated claims or defenses and is within the organization’s possession, custody, or control. It should be tailored to the dispute rather than instructing everyone to keep everything indefinitely. The appropriate scope can change as the facts develop.

Potentially relevant information may include:

• Email and attachments: Messages in business accounts, archived mailboxes, and relevant personal accounts used for work.
• Documents and files: Contracts, reports, spreadsheets, presentations, drafts, and files stored on computers, shared drives, or cloud services.
• Messages and collaboration data: Texts, chat messages, and communications in workplace platforms, where relevant and legally accessible.
• Business records: Paper files, invoices, personnel records, customer records, and other documents tied to the dispute.
• Device and system data: Relevant information on phones, laptops, removable media, servers, or specialized business systems.
• Other digital records: Depending on the case, social media posts, call logs, location data, photographs, access logs, or recordings.

Not every category will matter in every case. The hold should identify likely custodians—the people who may possess relevant information—and the systems or locations where their information is stored. It should also define a reasonable time period and describe the subject matter to preserve. These choices should be revisited as the investigation identifies new custodians, data sources, or issues.

How to Create and Manage a Litigation Hold

Assess the dispute and identify custodians

Legal counsel should assess the nature of the potential claims, relevant events, likely time period, and information sources. Interviews with key employees, review of organizational records, and input from information technology staff can help locate relevant material. The assessment should account for how the organization actually communicates and stores information, not just its formal document-retention policy.

Issue clear written instructions

A hold notice should explain, in plain language, why preservation is required, what topics and time period are covered, which records and devices may contain relevant information, and what recipients must do. It should tell recipients not to delete, edit, destroy, or conceal covered material, and provide a contact for questions. Instructions should be specific enough to guide action without making unsupported claims about what the law requires.

The notice should address both paper and electronic information. If employees use personal devices or accounts for work, counsel should assess whether relevant information there is within the organization’s control and how it can be preserved lawfully. Privacy, employment, data-protection, and cross-border rules may affect the process.

Suspend routine deletion where needed

Organizations often use automatic processes to delete emails, overwrite backups, remove chat histories, recycle devices, or discard paper records. When those processes could destroy information subject to a hold, the organization should take reasonable steps to suspend or modify them for relevant data. A hold does not necessarily require preserving every backup or system indefinitely; the appropriate measures depend on the data, its accessibility, and the circumstances.

Collect acknowledgments and monitor compliance

Recipients should acknowledge that they received and understood the notice. An acknowledgment helps document the process, but it does not prove that all relevant information was preserved. Legal teams should follow up, answer questions, and check that custodians have taken required steps. Departures, role changes, device replacements, and changes in technology can create gaps that need attention.

Review and release the hold

Preservation is an ongoing responsibility. Counsel should periodically confirm that the hold remains appropriate and update it when the claims, custodians, or data sources change. Once the legal matter and related preservation obligations have ended, the organization can assess whether to release the hold and return to normal retention practices. A hold should not be lifted merely because a case has settled if related claims, appeals, or other proceedings remain possible.

Preservation Notice vs. Document Retention Policy

A document-retention policy sets ordinary rules for keeping and disposing of records. A litigation hold temporarily overrides those rules for information relevant to a particular matter. If a normal policy calls for routine deletion, the organization may need to pause that deletion for covered records once a preservation duty arises.

Good retention practices can make a hold easier to manage, but a policy does not excuse the failure to preserve relevant material. Conversely, preservation does not automatically mean every record must be retained forever. The goal is to take reasonable, proportionate steps to protect information that may be needed in the dispute.

Common Preservation Mistakes

• Waiting for a filed lawsuit: The duty may arise earlier, when litigation becomes reasonably foreseeable.
• Sending vague instructions: A notice that does not identify relevant subjects, dates, or data sources can be difficult to follow.
• Ignoring newer communication tools: Relevant records may exist in text messages, chat platforms, collaboration software, or personal devices used for business.
• Failing to stop automated deletion: A written notice may be ineffective if systems continue deleting covered information.
• Assuming an acknowledgment is enough: Recipients may need follow-up, technical support, or revised instructions.
• Preserving too broadly without review: Unfocused, indefinite preservation can create cost and operational burdens. Scope should be reassessed as facts develop.
• Releasing the hold too soon: A matter’s apparent resolution may not end every related preservation obligation.

What Happens If Relevant Information Is Lost?

Loss of potentially relevant information does not automatically lead to sanctions. Under Federal Rule of Civil Procedure 37(e), a court considers whether the information should have been preserved, whether reasonable preservation steps were taken, whether the information can be restored or replaced, and whether its loss prejudices another party. Remedies can be tailored to the circumstances.

If a court finds that a party acted with the intent to deprive another party of the information’s use in litigation, Rule 37(e) permits more severe measures, including an adverse-inference instruction or, in appropriate cases, dismissal or default judgment. State law and other procedural rules may differ. A well-documented, reasonable preservation process can help show what steps were taken, although documentation cannot restore information that was lost.

What a Preservation Notice Typically Includes

A notice is a practical tool, not a substitute for legal analysis. Organizations should work with counsel to determine when the duty began, which information is within scope, what preservation steps are reasonable, and how to manage the hold as a matter evolves.

Reliable Sources and Further Reading

• Federal Rule of Civil Procedure 37, including Rule 37(e) on lost electronically stored information.
• Federal Rule of Civil Procedure 26, covering discovery scope and proportionality.
• U.S. Courts: Federal Rules of Civil Procedure, the official source for current federal civil rules.