What is a Legal Hold?

A legal or litigation hold is a procedure which is designed to ensure that information which could be relevant to litigation is preserved. People and organizations are obligated to put a legal hold in place to preserve evidence and supporting materials in their possession if they become aware of litigation proceedings which may be initiated against them. Failure to preserve relevant documents under a legal hold can result in fines and other penalties.

The process of establishing a legal hold starts when a person or organization becomes aware of the potential for litigation. One way to make sure that people are aware is to send them a notification, which also ensures that if they destroy documents after the notice was sent, they can be penalized for failing to put a legal hold in place after they discovered that litigation was a possibility.

Once aware of the duty to preserve evidence, people must take steps to ensure that both electronically stored information and physical documents are properly stored. This may involve a temporary suspension of document and information handling policies to avoid automatic shredding, overwrites of tape storage, and so forth. With electronically stored information, there are requirements in some regions that a separate sequestered storage area be created to reduce the risk of accidental deletions or corruptions of the data.

In an organization such as a company, the legal counsel of the company usually informs the company that a legal hold is in place and that steps need to be taken to comply. The information technology department and any employees who are affected must also be informed. To ensure that legal holds are executed smoothly and consistently, most companies have clear policies in place which inform people about what to do in the event of a litigation hold. These policies can also be used in court to show that a company has done its due diligence when it comes to protecting evidence.

In the case of criminal matters, the government can also execute a warrant to seize information and relevant documents which pertain to a case or investigation. In the case of civil matters, lawyers on the opposing side can compel the disclosure of evidence and relevant materials as they prepare for their day in court. During a process known as “discovery,” both sides can request documents, depositions, and other materials which they believe to be relevant to the case.