Checklist · Cross-practice

Litigation Hold: Trigger to Release

Nearly every spoliation sanction tells the same story: the hold went out late, IT never got the memo, and auto-delete kept running. None of it is exotic. This checklist covers the full life of a hold — including the part most programs skip, which is ending one.

Updated June 2026· Full lifecycle· Prints to 2 pages

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.

Why the formality matters

In federal court, for electronically stored information, the serious sanctions — adverse-inference instructions, dismissal — generally require intent under Rule 37(e). Many state courts, and the standard for non-electronic evidence like video and physical items, are less forgiving — negligence or gross negligence can be enough — so confirm the rule in your forum. Either way, what turns an honest IT oversight into something that looks like intent is the absence of process: no timely notice, no suspension ticket, no acknowledgments, no reminders. The paper trail isn’t bureaucracy; it is the defense.