Only You can Prevent Legal Hold Wildfires

Don't get burned... unmanaged preservation duties, ineffective litigation holds and faulty deletion strategies. Explore ediscovery case law, rules and best practices for:

Developing legal hold procedures

Determining preservation triggers

Releasing a legal hold

Legal Hold
What interests you most?

Case Law: The Duty to Preserve

Rules: The Duty to Preserve and the FRCP

Rule 1.

Both the courts and the parties are responsible for just, speedy, and inexpensive litigation.

Rule 26(b)(1).

Discovery must be proportional to the action. Parties will need to consider numerous factors when making requests.

Rule 37(e).

Sanctions may be imposed upon parties for the loss of ESI in extreme circumstances.

5 Legal Hold Tips

Be Proactive.

Know how to set up your legal hold before the time comes.

Assign someone who knows how to:

  • Identify key custodians and put them on notice
  • Adjust the organization’s regular document retention or destruction policy to prevent spoliation

Be Prepared.

Identify a legal hold software that effectively supports your needs.

  • Streamline project management
  • Motivate progress
  • Promote comprehensive responses
  • Defensibly track and analyze responses

Be Sophisticated.

Have clear procedures in place ahead of time.

  • Establish and adhere to a document retention policy, that addresses ESI
  • Implement a detailed, formal written legal hold policy
  • Assign a team of personnel to ensure the policies are followed

5 Legal Hold Tips

Know Your Trigger.

Consult counsel to establish triggering standards specific to your company’s circumstances and risk profile.

Develop formal procedures for notifying appropriate legal personnel of actual or potential legal incidents.

Establish clear responsibilities for the quick investigation of the circumstances and potential “reason to anticipate” legal actions.

5 Legal Hold Tips


Documenting legal hold procedures will help you avoid spoliation claims, withstand future scrutiny and provide additional defensibility.


Automate your legal hold to cut costs and eliminate discretionary mistakes. Automation promotes a transparent, predictable and defensible legal hold strategy.


With the proper procedures in place, an efficient legal hold should be easy to implement.

5 Legal Hold Tips

Communication is Key.

Ensure it's a Team Effort.

  • Assemble your team
  • Outline the roles and responsibilities of each member
  • Educate others in your company about the legal hold policy

Communicate across Departments.

  • Eliminate cross-organizational problems by building bridges with IT
  • Ensure all departments are aware of the legal hold

Make it an Ongoing Necessity.

  • Maintain communication lines
  • Verify that recipients acknowledge receipt and understanding of legal hold notices
  • Follow-up and keep track

5 Legal Hold Tips

Know When to Stop.

Over-preserving can be costly, but on the other hand, releasing a legal hold too soon can lead to sanctions.

  • Evaluate the status of the matter
  • Verify that preservation obligations have ended
  • Confirm that they are not likely to re-emerge

Have defensible procedures in place for releasing ESI from a legal hold.

Putting It All Together


The duty to preserve is critical.


Taking the right steps to prepare for legal holds now will make the entire process easier to handle and easier to defend down the road.


Legal holds are mandatory and need to be timely, comprehensive and proactive. Legal departments must take steps to comply with evolving industry standards.


The legal hold process is a collaborative endeavor. Communication with all players involved is a necessity.