Legal hold, often termed “litigation hold” or “preservation orders,” is used by an organization that anticipates litigation.
Legal hold may be issued to preserve relevant
documents in response to a complaint or
threat of litigation; to a subpoena, as
part of an ongoing legal proceeding;
or upon notice of a formal inquiry
or investigation by a government
agency or law enforcement. The use
of a legal hold to satisfy preserva-
tion obligations was popularized by
the 2003 decision in Zubulake v. UBS
Warburg.1 The court suggested that
“[o]nce a party reasonably anticipates litiga-
tion, it must suspend its routine document
retention/destruction policy and put in place a
Even for organizations that do not partici-
pate in frequent litigation, being prepared with
thorough planning and sound methodology
is critical for managing legal holds. In other
words, it’s better to be safe than (very) sorry.
According to recent survey results, more
than 60% of companies don’t have a formal process in place for legal holds. 2 This is a troubling
statistic, considering that entire cases can be
lost if a legal hold is not properly executed, thus
exposing the organization to significant risk,
and that even delays in implementing a legal
hold can result in serious consequences.
The legal hold process
A legal hold program defines how information is identified, preserved, and maintained
when it is determined that a duty to preserve
by Brian Santo, JD, MPH, CHC, CCEP, CHRC, CHPC, PMP
Legal holds: Best
practices for meeting
» An organization may issue a legal hold to preserve relevant documents in response to a complaint or threat of litigation,
to a subpoena, or upon notice of a formal inquiry or investigation.
» An organization that fails a DCAA audit jeopardizes its reputation and competitiveness within the government
» The Sedona Guidelines for Managing Information & Records in the Electronic Age are an excellent reference point for
organizations seeking to develop or improve their legal hold program.
» Logging the steps taken, key decision points, and process milestones can demonstrate to the court that the legal hold
process was implemented reasonably and in good faith.
» Overbroad legal holds increase the cost of data storage, maintenance, and legal review and may result in retaining
“smoking gun” documents that could have been legitimately deleted before or between legal holds.
Brian Santo ( email@example.com) is Compliance Manager & Contracts
Specialist in the Washington DC office of the National Committee for
Quality Assurance. /in/briansanto