Litigation Hold

The duty to preserve attaches when litigation is reasonably foreseeable, which can be well before a lawsuit is filed. An EEOC charge, a demand letter, a serious internal complaint, or a workplace incident likely to generate a claim can all trigger it. Once triggered, the employer must identify custodians and data sources, issue written hold notices, suspend automatic email and backup purges, and preserve relevant personnel files, timekeeping records, payroll data, security video, and messages in collaboration tools. If counsel opens an internal investigation into the same complaint, the interview notes and witness statements fall inside the hold, so those interviews should begin with an Upjohn warning making clear that the lawyer represents the company and that the privilege over the interview is the company's to keep or waive.

Holds have to be maintained, not just issued. Best practice is to reissue reminders periodically, add new custodians as the matter develops, and add a preservation step to the offboarding checklist so data from departing employees is captured before accounts and devices are wiped. Release the hold in writing only when counsel confirms the matter is closed.

Failing to preserve can lead to sanctions for spoliation. Under Federal Rule of Civil Procedure 37(e), a court can impose measures to cure prejudice from lost electronically stored information and, if it finds the loss was intended to deprive the other side of the evidence, can instruct a jury to presume the information was unfavorable. In employment cases the common lapse is routine: an HRIS purge policy or a 90-day email retention rule that quietly deletes exactly the records at issue.

Frequently asked questions

When does the duty to preserve records begin?

As soon as litigation is reasonably foreseeable, which is often well before a complaint is filed. A discrimination charge, a demand letter, a serious internal complaint, or a workplace incident likely to generate a claim can all trigger it. Waiting for service of process is how relevant records disappear.

What has to be preserved under a litigation hold?

Anything relevant to the anticipated dispute. That typically means personnel files, timekeeping records, payroll data, security video, email, and messages in collaboration tools. The employer also has to identify custodians and data sources, issue written hold notices, and suspend automatic email and backup purge routines while the matter is open.

What happens if records are destroyed anyway?

A court can impose sanctions for spoliation. Under Federal Rule of Civil Procedure 37(e), it may order measures to cure the prejudice from lost electronically stored information, and if it finds the loss was intended to deprive the other side of evidence, it can instruct the jury to presume the information was unfavorable.