Litigation Hold: Trigger to Release

1. Recognize the trigger

The duty to preserve attaches when litigation is reasonably foreseeable — almost always earlier than teams assume, and well before anything is filed. Treat each of these as a presumptive trigger:

• A demand letter or lawyer letter, received or sent — the duty runs both ways
• An agency charge or complaint (EEOC, OSHA, state equivalents)
• A serious internal complaint, or an incident with injuries or significant loss
• A credible threat of suit, even verbal — “you’ll hear from my attorney” counts more often than not
• Your own decision to pursue a claim against someone else

2. Scope it in one sitting

• Work from claims to custodians. What would each side need to prove? The people touching those facts — decision-makers, supervisors, the complainant’s chain, relevant IT and HR staff — are your custodian list.
• Set the date range generously. Anchor to the events plus reasonable runway on both sides. Narrowing a broad hold later is easy; explaining a gap is not.
• Inventory the sources per custodian. Email, chat, files, phones, and the systems specific to your operation — quality records, dispatch logs, charting systems, ticketing queues.

3. Catch the sources teams forget

• Text messages — including on personal phones. If supervisors run the operation by text (they do), those messages are likely discoverable. BYOD makes preservation awkward; it does not make it optional.
• Chat platforms. Slack, Teams, and their retention settings — many workspaces silently delete after 30 or 90 days.
• Departing and departed employees. Mailboxes and accounts are often auto-purged 30 days after termination. If a custodian is leaving, preserve first, offboard second.
• Video. CCTV systems overwrite on 7–30 day loops. If footage could matter, it is the single most urgent item on this page.
• Operational telemetry. Badge data, timeclocks, vehicle telematics, machine logs — short retention, high evidentiary value, owned by departments that have never heard of a litigation hold.
• Third-party custodians. Payroll vendors, staffing agencies, managed IT providers, cloud apps. Send preservation requests; their retention clocks don’t pause for your dispute.

4. Send a notice people can follow

• Plain language, one page. What happened (briefly, neutrally), what to keep, what “keep” means, and a named human to call with questions.
• Say what not to do. No deleting, no “tidying up,” no helpful reorganizing of files, no new personal-device workarounds to keep things off systems.
• Suspend auto-deletion — with a ticket. Email retention rules, chat expiration, recycling schedules for the relevant custodians and systems. Get IT’s confirmation in writing; this is the step whose absence shows up in sanctions opinions.
• Track acknowledgments. Every custodian confirms receipt. Chase the silent ones; an unacknowledged hold protects no one.

5. Keep it alive

• Remind on a schedule. Quarterly is typical. Holds decay as people forget, change roles, and get new laptops.
• Update for personnel changes. New people on the matter get the notice; departing custodians trigger the preservation-first offboarding above.
• Re-scope when the case changes. Amended claims, new counterclaims, new time periods — the hold should match the dispute as it exists, not as it began.

6. Release it on purpose

• End the hold formally when the matter ends. A dated release memo: what ended, why, counsel sign-off. Then normal retention resumes.
• Check for overlapping holds first. Custodians and data often sit under multiple matters; release one hold, not the evidence for another.
• Audit the zombie holds annually. Holds that never end quietly convert your retention policy into “keep everything forever,” which raises cost and risk in every future case.