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Legal Hold

Last updated: 2026-03-23

A legal hold (also called a litigation hold or preservation order) is a directive issued by an organization to preserve all documents, records, and electronically stored information that may be relevant to pending or reasonably anticipated litigation, audit, or government investigation. It suspends routine document destruction policies to prevent spoliation.

What is a legal hold?

A legal hold is a formal notification and process that requires an organization to preserve potentially relevant evidence when litigation, a regulatory investigation, or an audit is pending or reasonably anticipated. The duty to preserve arises under common law and doesn't require a court order to take effect. Once triggered, the organization must suspend routine document destruction policies and take affirmative steps to make sure relevant documents and ESI aren't deleted, altered, or overwritten.

The landmark Zubulake v. UBS Warburg decisions (S.D.N.Y. 2003-2004) established the modern framework for legal hold obligations. Judge Scheindlin ruled that once litigation is reasonably anticipated, counsel has a duty to issue a written litigation hold notice, identify key custodians, and ensure that relevant data sources are preserved. Failure to do so can result in spoliation sanctions, including adverse inference instructions and monetary penalties.

Legal holds typically involve identifying custodians (individuals who possess relevant documents), sending written hold notices that describe the scope of preservation, and confirming compliance on an ongoing basis. The hold stays in effect until the matter is resolved and counsel determines that preservation is no longer required.

"If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may presume that the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action."-- Federal Rules of Civil Procedure, Rule 37(e)

Key facts

  • According to the 2023 Norton Rose Fulbright Annual Litigation Trends Survey, approximately 46% of companies reported facing regulatory proceedings, which highlights the frequency with which legal holds are triggered.
  • Failure to preserve evidence remains one of the most sanctioned discovery failures in federal litigation.
  • FRCP Rule 37(e) establishes a two-tier sanctions framework: curative measures for prejudice from lost ESI, and adverse inference instructions only when a party acted with intent to deprive.
  • The Zubulake decisions (S.D.N.Y. 2003-2004) remain the leading authority on litigation hold obligations and are widely cited by courts nationwide.

Legal holds and Hintyr

While Hintyr does not issue legal hold notices directly, it serves as a secure repository for preserved documents once they have been collected. After your organization collects ESI under a legal hold, you can upload those files into a Hintyr case for review, analysis, and production.

Within Hintyr, you can use tags to organize held documents by custodian, matter, or hold scope, making it straightforward to track which documents belong to which preservation obligation. Custodian management lets you associate files with specific individuals, and production tools help you respond to discovery requests with properly formatted document exports.

Frequently asked questions

When does the duty to preserve begin?
The duty to preserve begins when litigation is reasonably anticipated, not when a lawsuit is actually filed. This trigger can occur when a party receives a demand letter, a government inquiry, or has reason to believe that legal action is likely.
What happens if a legal hold is not issued in time?
Failure to issue a timely legal hold can result in spoliation of evidence. Under FRCP Rule 37(e), courts may impose curative measures if the lost ESI causes prejudice. If the court finds intent to deprive, it may issue adverse inference instructions or dismiss claims.
Who is responsible for issuing a legal hold?
Counsel (either in-house or outside attorneys) is responsible for issuing legal hold notices. The organization must then ensure compliance by identifying custodians, preserving relevant data sources, and monitoring ongoing adherence.
Can Hintyr help manage documents under a legal hold?
Yes. While Hintyr does not issue hold notices, it provides a secure platform for organizing, reviewing, and producing preserved documents. Tags and custodian assignments help track which documents fall under specific preservation obligations.

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