Legal Hold: When It Triggers and How to Run One Without Spoliation

Last updated: 4 November 2026. This guide is based on Federal Rule of Civil Procedure 37(e) and its 2015 committee note, the Zubulake opinions, The Sedona Conference Commentary on Legal Holds (Second Edition), recent federal orders and law firm client alerts. It covers US federal practice, with a short note on England and Wales. State rules and circuit law can differ.

Short answer: A legal hold is the instruction that stops a party deleting material once litigation is reasonably anticipated. Under Zubulake, that duty can start well before any complaint is filed. Under FRCP 37(e), the harshest sanctions for lost electronic data require intent to deprive, while curative measures need only prejudice. A defensible hold is prompt, written, acknowledged, monitored and formally released.

Key takeaways

• The trigger is reasonable anticipation of litigation, not service of a complaint. In Zubulake, the duty attached four months before the EEOC charge was filed.
• Rule 37(e) asks whether the party took reasonable steps. It does not demand perfection, but a hold that leaves auto-delete running is hard to defend.
• Adverse inferences, dismissal and default need a finding of intent to deprive. Negligence and gross negligence are not enough, though courts can still order curative measures.
• A notice is the start of the job. Counsel has to reach key players, turn off deletion, take acknowledgements, send reminders and keep a record of each step.

What is a legal hold?

A legal hold, also called a litigation hold, is a direction to suspend normal deletion and keep information that may matter to a dispute. The label is less important than what it does: it overrides the retention schedule, the mailbox limit, the chat setting and the habit of tidying up old files.

The duty itself comes from common law. The 2015 committee note to Rule 37 says the rule is based on that common law duty and does not create a new one. So there is no federal rule that says “issue a hold notice”. What the rules do is punish the failure to preserve.

This sits upstream of everything else in discovery. Our piece on eDiscovery and AI explains how review has changed, but no review tool can recover what was never kept. Our guide to preserving electronic evidence in civil lawsuits shows the same logic in smaller matters.

When does the duty to preserve trigger?

The classic statement is Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), known as Zubulake IV. Judge Scheindlin held that once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and put a litigation hold in place. On the facts, the duty attached in April 2001, although the EEOC charge did not arrive until August 2001.

The Federal Circuit took the same line in Micron Technology v. Rambus, 645 F.3d 1311 (Fed. Cir. 2011), which concerned a would-be plaintiff. It asked whether litigation was reasonably foreseeable, treated that as a flexible test on all the facts, and rejected the argument that litigation must be imminent. That matters for claimants: if your client is planning to sue, its duty may arise before the defendant’s does.

The Sedona Commentary on Legal Holds frames the trigger as a credible probability of litigation, or serious contemplation of bringing it. No single factor decides the point, and decisions are judged on what was known at the time, not with hindsight.

Being served with a subpoena as a non-party raises its own question. The duty to respond is clear, but whether a wider hold is needed depends on how likely it is that your client becomes a party. Keep the material covered by the subpoena either way.

What does FRCP 37(e) require?

Rule 37(e) applies when 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, and it cannot be restored or replaced through additional discovery. Only then does the court reach sanctions. All three conditions must be met, and the rule covers electronic information only. Lost paper and physical evidence fall under inherent power and circuit case law.

The committee note is useful reading. It says reasonable steps suffice and the rule “does not call for perfection”. It asks courts to weigh a party’s sophistication and resources, and it warns that aggressive preservation can be extremely costly. It also rejects cases such as Residential Funding v. DeGeorge Financial, stating that negligent or even grossly negligent behaviour does not support the inference that lost data was unfavourable.

In February 2025, the Second Circuit applied this in Hoffer v. Tellone. It held that intent to deprive is required, that it is proved on a preponderance of the evidence rather than a clear and convincing standard, and that the trial judge may make the finding. Cleary Gottlieb reads the decision as aligning the Second Circuit with six others.

What about having no written hold at all? Chin v. Port Authority (2d Cir. 2012) rejected the idea that this is gross negligence in itself and called it one factor among others. That is not a licence to skip the notice. A party with no written hold still has to prove its steps were reasonable, and it has little to show for them.

How do you run a legal hold, step by step?

Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004), remains the best short summary of counsel’s job, and this case digest sets it out: issue the hold and re-issue it periodically, speak directly to key players, tell staff to produce copies of active files, and secure the relevant backup media. UBS’s failures ended in an adverse inference instruction. A practical sequence looks like this:

1. Record the decision. Note who decided, when, on what facts and what the scope is. Sedona treats documentation of the process as part of a defensible hold.
2. Map custodians and systems. Zubulake’s “key players” are the starting point. Add assistants, IT, shared drives, chat, phones, cloud accounts and vendors.
3. Stop deletion first. Work with IT to suspend auto-delete and recycling before or as the notice goes out, so nothing depends on individuals remembering.
4. Send the written notice. Use the checklist below.
5. Take acknowledgements and chase them. Keep a log of who replied and when.
6. Interview key players. Ask where they keep things, including personal phones and messaging apps.
7. Collect what is at risk. Departing staff, device refreshes and short retention periods call for early collection. Tell HR and IT to check the hold list before wiping any device.
8. Monitor and remind. Sedona recommends regular monitoring and periodic reminders. Add new custodians as the case develops.
9. Release it formally. When the duty ends, lift the hold in writing, after checking that the same data is not under another hold.

In-house teams usually own this process, which is one reason a general counsel needs a written trigger procedure before the first demand letter lands. Larger matters may justify outside help, covered in our piece on eDiscovery service providers. To compare products with hold and preservation features, see our e-discovery software directory.

What should a hold notice include?

Sedona’s Guideline 8, read with recent orders, supports this checklist:

• A plain description of the dispute, without legal analysis or admissions.
• The date range and subject matter to keep.
• Examples of material covered: email, documents, chat, texts, voicemail, calendars, notebooks, personal devices and accounts used for work, AI tool prompts and outputs.
• A clear instruction not to delete, alter, overwrite or discard, overriding any retention policy.
• A specific warning to switch off auto-delete on phones and apps.
• A warning not to move, forward or self-collect unless told to.
• A named contact for questions.
• A statement that the notice stays in force until released in writing.
• An acknowledgement that the recipient has received, read and understood it, with a deadline.

Mark the notice as privileged, but do not write it as if an opponent will never see it. Hold letters are generally protected, yet preservation efforts are not, and in Major Tours v. Colorel (D.N.J. 2009) a court ordered the letters produced after a preliminary showing of spoliation. There, the hold came 21 months after suit was filed.

Where do legal holds fail in practice?

Most recent problems involve short-lived data and people left to police themselves.

Auto-delete left on. In Jones Eagle LLC v. Ward (E.D. Ark. Jan. 30, 2026), a defendant’s phone had a one-year auto-delete setting, and texts remained available for more than three months after the case began. The court said it was “keenly interested” in whether a hold had been issued, ordered written confirmation and said an adequate notice must warn recipients to disable auto-delete. No sanction had been decided when EDRM reported the order.

Custodian discretion. In In re Google Play Store Antitrust Litigation (N.D. Cal. Mar. 28, 2023), internal chats deleted after 24 hours, and employees under hold could decide what to keep, with no audit. Judge Donato found that Google “intended to subvert the discovery process”, awarded fees and costs, and deferred non-monetary sanctions.

A switch of apps once trouble starts. In FTC v. Noland (D. Ariz. Aug. 30, 2021), the defendants moved to Signal with auto-delete on the day after learning of an FTC subpoena, then deleted the app before their phones were imaged. The court called the timing the most decisive factor in finding intent and granted an adverse inference.

AI tools outside the hold. Courts have so far applied existing rules to prompts and outputs. McGuireWoods notes that a May 2025 order in the OpenAI copyright litigation required output logs to be preserved even where deletion followed standard practice, and that courts have not yet defined reasonable steps for AI data.

Does the UK have an equivalent to a legal hold?

Yes. In the Business and Property Courts of England and Wales, Practice Direction 57AD is more explicit than the US rules. A person who knows it may become a party must take reasonable steps to preserve documents. Deletion must be suspended, current and former employees who may hold documents must be told in writing where the conditions are met, and lawyers must notify the client and obtain written confirmation. Each party then confirms in writing, when serving its statement of case, that those steps were taken.

For holds that cross borders, Sedona’s Guideline 12 says organisations should consider local data protection law. Take local advice before moving staff data to the US.

Frequently asked questions

What is the difference between a legal hold and a litigation hold?

None in substance. Both mean an instruction to suspend deletion and preserve information relevant to a dispute. The duty can arise before any lawsuit exists, for example during a government investigation, which makes “legal hold” the broader label. Sedona’s commentary uses “legal hold”, while Zubulake and many courts say “litigation hold”.

Is a written legal hold required by law?

Not expressly. No federal rule requires a written notice, and Chin v. Port Authority held that lacking one is not gross negligence in itself. Written notice is still the preferred practice under Sedona and DR Distributors, because the party must show reasonable steps. A verbal instruction leaves almost nothing to prove that with.

Can a party be sanctioned without acting in bad faith?

Yes, within limits. Under Rule 37(e)(1), a court that finds prejudice can order curative measures no greater than necessary, without any finding of intent. Adverse inferences, dismissal and default judgment under Rule 37(e)(2) need intent to deprive.

Do you have to keep backup tapes under a legal hold?

Generally not all of them. Zubulake IV said a hold does not usually reach inaccessible backup tapes kept for disaster recovery, but accessible backups are likely covered. It also carved out tapes holding key players’ documents where that data is not otherwise available.

Do AI prompts and outputs fall under a legal hold?

Treat them as covered if they are relevant. Rule 34’s definition of electronically stored information is broad, and McGuireWoods says it may reach prompts, outputs and logs. No court has set an AI-specific preservation standard. Kilpatrick Townsend advises naming them in the notice and checking each platform’s retention period, and McGuireWoods notes that some windows are as short as 30 days.

When can a legal hold be released?

When the duty to preserve has ended, usually after final resolution including any appeal, or once it is clear no claim will follow. Release it in writing. Before normal deletion resumes, check each custodian and data source against other active holds, as Sedona recommends, so that data needed elsewhere is not lost.

This article is general information about US federal practice, with a note on England and Wales, as of 4 November 2026. It is not legal advice. Preservation duties depend on the jurisdiction and the facts, so take advice on your own matter.