Know When to Hold Em: Communicating the Legal Hold

In our last post, we provided a historical perspective on how preservation practices have evolved with changing data sources over the years from paper to email to cloud-based sources and GenAI content. The legal hold process is the heart of defensible eDiscovery. It is the moment an organization transforms the “duty to preserve” into concrete action: identifying potentially relevant data, notifying custodians, and ensuring that responsive information is not altered or destroyed. But issuing a legal hold is not as simple as sending a notification email and hoping for the best. With today’s sprawling data environments, hybrid workforces, and increasing reliance on cloud platforms and mobile devices, legal teams must adopt structured, thoughtful, and technologically supported processes to ensure that preservation is both effective and defensible. In this post, we’ll discuss the best practices for communicating the legal hold.

Issuing Effective Legal Hold Notices

A legal hold notice must accomplish two things: it must clearly explain the custodian’s responsibilities, and it must do so in a way that lays the foundation for defensibility. Here are some of the keys to issuing clear and actionable legal hold notices:

Determine the Scope

Before drafting the notice, legal teams should collaborate with business stakeholders and IT to clearly define which custodians have potentially relevant information, identify the specific systems, repositories, or devices that must be preserved, and establish the responsive issues, relevant timeframe, and data types involved. Taking a well-thought-out narrowly tailored approach to the hold not only reduces risk but also minimizes unnecessary burden.

Draft a Notice That Custodians Can Actually Follow

A legal hold notice should be written in plain language, avoiding legal jargon whenever possible. Best practice elements include:

• A summary of the matter and why preservation is required
• Clear instructions on what data to preserve
• Listing examples of relevant documents (emails, chat messages, drafts, spreadsheets, shared drive content, cloud files, mobile data, etc.)
• Instructions to suspend deletion or alteration of materials
• Steps that can be taken to ask questions or request guidance
• A requirement for acknowledgment

Notices should be concise: custodians are more likely to comply when they understand exactly what is needed.

Issue the Notice Promptly

Courts expect organizations to act quickly once litigation is reasonably anticipated. Delays can lead to spoliation allegations and sanctions under FRCP 37(e). Automated legal hold systems allow immediate issuance to large groups of custodians without manual bottlenecks.

Tracking Custodian Compliance

Issuing the notice is not enough. Organizations may be asked to prove that custodians received, understood, and followed the instructions. Courts increasingly expect active monitoring and documentation.

Track Acknowledgments

A defensible workflow includes:

• Automated delivery confirmation
• Read receipts or confirmation tracking
• Follow-up reminders for nonresponsive custodians

Technology makes it easy to see who has acknowledged the hold, who hasn’t, and who requires escalation.

Send Periodic Reminders

Preservation obligations remain in effect for as long as the matter is ongoing. To maintain compliance, organizations should implement scheduled reminders: such as sending notifications on a quarterly or monthly basis, or adjusting the frequency based on the specifics of each matter. Updates should also be provided whenever the scope of preservation changes, and notices must be issued whenever custodians are added or removed.

Document Every Step

Defensibility hinges on documentation. Legal teams should maintain an audit trail that shows:

• When each notice was issued
• When custodians acknowledged their obligations
• All reminders and follow-up communications
• Any escalations to managers
• Changes to custodian lists
• Hold releases once matters conclude

This documentation is essential if the organization must prove reasonable preservation under FRCP 37(e).

Managing Custodian Engagement

Technology is important, but effective preservation also requires human engagement. Custodians often have questions about scope, systems, or responsibilities. They may not know how to preserve certain data types (e.g., Teams chats, local documents, text messages, or application-specific content).

Provide Training and Practical Instructions

Short, practical instructions can dramatically improve compliance. For example, guidance might include how to stop auto-deleting messages, preserve mobile content, pause retention schedules or inbox rules, and identify relevant shared drives or cloud folders. Frequently asked questions tailored to the matter may also be provided. In addition, some organizations include short training videos or links to knowledge articles within the hold notice to further support custodians.

Establish Clear Points of Contact

Custodians should know exactly who to contact with questions, which typically includes a designated discovery coordinator, the internal legal team, or IT and information governance personnel. Establishing centralized communication helps avoid confusion and ensures that responses are consistent and reliable.

Regularly Review Custodian Lists

Matters evolve. New custodians may join a project, employees may leave the company, or data responsibilities may shift. Ongoing custodian review ensures the scope remains accurate.

Leveraging Technology to Streamline Administration

The shift from manual to automated legal hold processes has been one of the most significant advancements in modern eDiscovery. Legacy workflows—email notifications, spreadsheets for tracking compliance, and ad hoc follow-ups—are no longer feasible at scale.

Automated Legal Hold Platforms

Modern preservation requires consistency, visibility, and auditability, all of which are best achieved through purpose-built legal hold platforms which provide:

• Automated issuance and tracking of notices
• Reminder scheduling
• Dashboards showing compliance rates
• Escalation workflows
• Centralized documentation for audit purposes

Integration with IT and Cloud Systems

Today’s legal hold platforms integrate with enterprise systems (like Microsoft 365, Google Workspace, Slack and other collaboration tools and HR systems) to automate notices, track acknowledgments, schedule reminders, and maintain comprehensive audit trails. This allows “preservation in place”: a more defensible and less disruptive method of preventing deletion without duplicating data.

Automated Custodian Identification and Preservation Analytics

Emerging AI-powered features are also beginning to assist with custodian identification, data mapping, and scope recommendations. These tools analyze communication patterns, organizational charts, and systems usage to help legal teams determine who might possess relevant data and where it lives. As the volume and complexity of data continue to grow, AI will play an increasingly central role in supporting defensible preservation decisions.

Building a Defensible Legal Hold Program

Defensibility is the ultimate goal: the ability to show that the organization took reasonable, good-faith steps to preserve potentially relevant information.

What does defensibility look like? It looks like this:

• Clear, timely, well-documented legal holds
• A consistent, repeatable process
• Monitoring and accountability
• Properly trained custodians
• Technology that provides transparency and accuracy

Courts recognize that perfection is impossible – reasonableness, good faith, and documentation are the key to differentiating between imperfection and incompetence.

Conclusion

As data landscapes expand and collaboration tools proliferate, legal hold management has become both more complex and more strategically important. A defensible preservation process is no longer a matter of administrative diligence: it is a cornerstone of litigation readiness.

By issuing clear notices, actively managing custodian engagement, tracking compliance, and leveraging modern technology, organizations can navigate preservation obligations with confidence and clarity. In an era defined by digital information and rapid change, the organizations that master legal hold administration will be the ones best positioned to reduce risk, control costs, and maintain trust in the discovery process. In our next post, we will discuss examples of preservation failures that put organizations at risk and how to avoid them. Stay tuned!

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