A litigation hold (also called a "legal hold" or "preservation order") is a directive issued by an organization's legal counsel requiring employees and custodians to retain documents, emails, messages, and other records that may be relevant to anticipated or pending litigation, investigation, or regulatory inquiry. It suspends normal document-destruction and retention-schedule policies for the affected materials.
The duty to preserve evidence arises once litigation is reasonably anticipated, not just after a complaint is filed. In U.S. federal practice, this duty was sharpened by the Zubulake v. UBS Warburg decisions (2003–2004), in which Judge Shira Scheindlin held that counsel must actively monitor compliance with the hold and that failure to preserve electronically stored information (ESI) can result in sanctions. The principle was further codified in the 2015 amendments to Federal Rule of Civil Procedure 37(e), which sets out remedies for the loss of ESI that should have been preserved.
A typical hold notice identifies:
- the matter triggering preservation
- categories of documents and data sources covered (email, chat platforms, shared drives, mobile devices, paper files)
- the custodians subject to the hold
- the duration (until formally released by counsel)
Sanctions for breach can include adverse-inference jury instructions, monetary penalties, evidence exclusion, or default judgment. High-profile spoliation findings — for example in Pension Committee v. Banc of America Securities (2010) and Coleman (Parent) Holdings v. Morgan Stanley (2005) — have produced substantial penalties.
For IR researchers and policy analysts, litigation holds are most relevant when studying corporate accountability cases, sanctions enforcement, FCPA prosecutions, or NGO and government oversight investigations. They also shape how think tanks, law firms, and international tribunals manage discovery in cross-border disputes, including arbitrations under ICSID or UNCITRAL rules where document production obligations apply.
Example
In 2018, Facebook issued litigation holds covering executive communications after the Cambridge Analytica revelations triggered FTC and SEC investigations into its data-handling practices.