A preservation notice is a formal written directive requiring a person or organization to save all information that could be relevant to a current or anticipated legal dispute. It’s also called a litigation hold. The obligation it describes exists under common law whether or not anyone sends a letter about it, but the notice puts the recipient on the record: once you have one, destroying covered materials — even through an automated system you forgot to pause — can carry consequences serious enough to decide the case.
When the Duty to Preserve Begins
The duty does not wait for a filed complaint. It arises the moment litigation is reasonably anticipated, meaning a reasonable person in the same position would foresee a legal dispute. A demand letter, a serious workplace injury, notice of a regulatory investigation, or word that a former employee has consulted a lawyer can each cross that threshold. The party planning to sue carries the same obligation; you cannot destroy evidence just because you’re the one bringing the claim.
Once litigation is reasonably anticipated, routine document destruction has to stop and a hold has to go into place.1U.S. Courts. Zubulake Revisited – Pension Committee and the Duty to Preserve Courts have deliberately avoided a bright-line trigger in favor of a fact-specific question: did the circumstances put this person or organization on notice that a dispute was likely?
A preservation notice can come from the outside, sent by an opposing attorney to the person or company they expect to sue, or from the inside, when a company’s legal department issues one to its own employees. The notice itself carries no automatic penalty — it is not a court order. What it does is create a clear record that the recipient knew. If evidence disappears after that point, the sender has a strong foundation for seeking sanctions.
What a Preservation Notice Should Contain
A well-drafted notice gives the recipient enough information to know what to save and why. At a minimum, it describes the nature of the dispute or anticipated dispute, identifies a relevant time period, and lists the categories of materials that must be preserved. It should instruct the recipient to suspend any routine destruction or deletion schedules and name a contact person for questions about scope.
When the notice goes to a non-party — a vendor, former employer, or business partner — it typically explains the relationship that makes the recipient’s data relevant. For an internal hold, the notice has to reach every employee likely to have relevant information, plus the IT staff and records managers who control the systems where that information lives. Vague notices cause compliance problems on both sides: the recipient doesn’t know what to save, and the sender can’t argue later that the recipient should have known.
What Has to Be Preserved
The scope of a hold is intentionally broad. It covers any information that could be relevant to the dispute, regardless of format or location.
Electronically Stored Information
ESI is where most of the risk sits. Under federal discovery rules, a party can be required to produce any documents or ESI within its possession, custody, or control.2Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes That language sweeps in emails, text messages, instant messages on platforms like Teams or Slack, social media posts and direct messages, voicemails, calendar entries, photos, videos, spreadsheets, database records, and drafts.
The obligation reaches every device and system where relevant data might exist: company servers, laptops, network drives, cloud storage, and personal devices like phones or tablets when used for work. Backup tapes generally don’t need to be preserved unless the company can identify specific employee data on them that isn’t available elsewhere.1U.S. Courts. Zubulake Revisited – Pension Committee and the Duty to Preserve
Metadata — creation dates, author names, edit histories — is also within scope. Courts have treated it as discoverable because it can show who created a document, when it was modified, and whether it was altered. Printing a file and discarding the electronic version destroys the metadata, which can itself be spoliation.
Ephemeral Messaging and Auto-Deleting Apps
Apps that automatically delete messages after a set period, like Signal, Snapchat, and disappearing-mode chats on WhatsApp, create a particular trap. The Department of Justice and the Federal Trade Commission have both made clear that preservation obligations apply to these tools, and that companies must disable auto-delete features for relevant communications once a hold is in place.3U.S. Department of Justice. Justice Department and the FTC Update Guidance That Reinforces Parties’ Preservation Obligations for Collaboration Tools and Ephemeral Messaging The FTC has warned that failing to preserve messages from ephemeral platforms can result in spoliation sanctions or a referral for criminal prosecution through its Criminal Liaison Unit.4Federal Trade Commission. FTC and DOJ Update Guidance That Reinforces Parties’ Preservation Obligations for Collaboration Tools and Ephemeral Messaging An employee who flips a chat to disappearing mode after a hold is issued has destroyed evidence in real time. A good hold names these platforms specifically and tells custodians to turn the settings off.
Paper and Tangible Things
Letters, contracts, memos, reports, handwritten notes, and meeting minutes are all covered. So are tangible items at the center of a dispute: a defective product in a product liability case, a damaged vehicle in an accident case, environmental samples in a contamination case. These cannot be repaired, modified, or discarded; they have to stay in their current condition.
Data Held by Third Parties
Relevant data your organization controls stays within scope even when it sits on someone else’s servers. Cloud-based email, a SaaS project platform, a vendor processing customer records — the data on those systems is still within your possession, custody, or control for discovery purposes.2Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes When a hold goes into effect, you may need to contact third-party providers directly and tell them to stop any automated purging of your data. If your contract with the vendor doesn’t give you the right to place a hold, retrieve data in a usable format, or prevent deletion, you may find yourself unable to comply through no fault of your own, and that is not a defense courts receive warmly.
Steps to Take After You Receive One
Speed matters. Automated deletion cycles can wipe out evidence in minutes. The first step is to suspend all routine document destruction across the organization: email auto-purges, server cleanup schedules, physical shredding. IT staff need to know before the next scheduled job runs.
Next, identify every person likely to have relevant information. These custodians need direct, written instructions describing the scope of the hold and their personal responsibility to preserve data. A mass email to the entire company is not a substitute for targeted notice to the people who actually have the documents. Each custodian should confirm in writing that they received and understood the hold.
Segregate what you preserve. Move electronic files to a secure, read-only folder. Gather physical documents in a protected location. The point is to separate preserved materials from the normal workflow so nothing is accidentally modified or deleted.
Document every step: who was notified, when, what instructions they received, how preserved materials were handled. This record becomes central if your preservation efforts are later challenged. A well-maintained compliance file can be the difference between a judge finding good faith and a judge imposing sanctions.
A hold is not one and done. New custodians get identified as a dispute develops, new data sources become relevant, and people forget. Issue periodic reminders, especially on holds that stretch over months or years. When new employees join a relevant team or a custodian changes roles, bring them into the hold. Courts have found preservation efforts inadequate where a company issued an initial hold and never followed up.
What Happens If You Fail to Preserve
Destroying, altering, or losing evidence that should have been preserved is called spoliation. Consequences range from monetary penalties to losing the entire case, and the severity depends heavily on whether the loss was negligent or intentional.
Federal Rule 37(e)
In federal court, Rule 37(e) sets up a two-tier framework for lost ESI. The rule applies when a party failed to take reasonable steps to preserve information that should have been saved and the information cannot be restored or replaced.5Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
At the first tier, if the opposing party was prejudiced by the loss, the court can order measures “no greater than necessary” to cure the prejudice. That might mean paying the other side’s attorney fees, allowing additional discovery, or precluding certain arguments.5Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
The second tier applies only when a court finds the party acted with intent to deprive the other side of the evidence. At that level, the court can presume the lost information was unfavorable to the party who lost it, instruct the jury to draw that inference, or dismiss the case entirely and enter a default judgment against the offending party.5Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Negligent loss exposes you to proportional remedies. Intentional destruction can end the case.
State courts apply their own spoliation frameworks and are not bound by Rule 37(e). Some allow adverse inference instructions on a showing of negligence alone. Consequences can differ sharply depending on where a case is filed.
Criminal Exposure
In the most serious cases, destruction crosses from a civil problem into a criminal one. Under federal law, knowingly destroying, altering, or falsifying records with intent to obstruct a federal investigation or proceeding can carry up to 20 years in prison.6Office of the Law Revision Counsel. 18 USC 1519 – Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy The statute reaches anyone who destroys records connected to a federal matter, not just the parties to litigation.
When a Hold Can Be Lifted
Knowing when it is safe to release a hold is harder than it looks. The duty does not automatically end when a case settles, is dismissed, or reaches final judgment. If related litigation is reasonably foreseeable — additional plaintiffs, an appeal, a parallel regulatory investigation — the duty to preserve can continue beyond the immediate case.
Before releasing a hold, confirm with counsel that no continuing obligations exist. Document the release in writing and formally notify custodians that their preservation duties for that matter have ended. Organizations that release holds prematurely and then face a related claim can land in the same spoliation trouble the hold was meant to prevent.