# What Is a Legal Hold? Definition and Triggers | Kodex

Source: https://www.kodexglobal.com/glossary/legal-hold

> A legal hold suspends routine deletion when litigation is reasonably anticipated. Learn when the duty attaches and what failure to preserve risks.

Compliance & Regulation

## Legal Hold

A legal hold is an internal instruction suspending the routine deletion of records that may be relevant to anticipated or pending litigation or investigation. Unlike a preservation request, it is imposed by an organisation on itself, and the duty to issue one arises as soon as litigation is reasonably foreseeable.

Also known as
litigation hold, preservation hold

The legal hold is the one obligation in this glossary that a company imposes on itself, which is precisely why it gets missed. Nothing arrives in the inbox to trigger it.

### When the duty attaches

The duty to preserve begins when litigation is reasonably anticipated, not when it is filed. Events that can trigger it include:

- Receiving a demand letter or a credible threat of suit

- An internal investigation into conduct likely to lead to claims

- Regulatory contact suggesting enforcement is contemplated

- Awareness of an incident whose facts make litigation foreseeable

Because the trigger is a judgement rather than a document, the practical risk is a gap between when the duty attached and when someone acted on it. Deletion continuing during that gap is where spoliation exposure accumulates.

### What a hold requires in practice

- Identify custodians and systems likely to hold relevant material.

- Suspend automated deletion for the material in scope. Retention policies that run automatically will otherwise destroy data on schedule.

- Notify custodians clearly, and confirm they understood.

- Monitor and reissue. Holds decay. New custodians join, systems change, and people forget.

- Release deliberately when the matter concludes, with a documented decision.

Legal holdPreservation request

Who imposes it The organisation itself A government agency

Trigger Litigation reasonably anticipated Receipt of a 2703(f) request

Scope defined by The organisation’s own assessment The requesting agency

Duration Until the matter concludes 90 days, renewable once

Consequence of failure Spoliation sanctions Loss of evidence, non-compliance

### What it means for a data request programme

Legal holds and government preservation requests overlap constantly, and treating them as one process causes problems in both directions. A preservation request has a fixed expiry, and continuing to retain data after it lapses conflicts with data minimisation obligations. A legal hold has no fixed expiry and must persist until the matter resolves. A single “do not delete” flag with no provenance and no end date satisfies neither obligation properly.

The workable pattern is to record, for each hold, what triggered it, what it covers, who imposed it, and what event releases it.

FAQ

### Frequently asked questions

When does the duty to preserve begin?

When litigation is reasonably anticipated, which is often earlier than a complaint being filed. A credible threat of suit, a demand letter, or internal awareness of facts likely to lead to litigation can each trigger it. Waiting for formal service is a common and expensive mistake.

How is a legal hold different from a preservation request?

Origin and authority. A legal hold is internal, self-imposed, and driven by the organisation’s own duty to preserve. A preservation request comes from a government agency and identifies records the agency has specified. Both suspend deletion, and the same data is often covered by both at once.

What happens if relevant data is deleted after the duty attaches?

It can be treated as spoliation. Under US Federal Rule of Civil Procedure 37(e), a court may impose measures to cure prejudice, and where a party acted with intent to deprive another of the information, may instruct a jury to presume the lost data was unfavourable or enter default judgment.

Glossary

### Related terms

#### Preservation Request

A preservation request asks a company to retain specified records so they are not deleted while law enforcement obtains legal process. It compels retention, not disclosure: no data is handed over. In the United States it is grounded in 18 U.S.C. § 2703(f) and generally runs for 90 days, renewable once.

#### Chain of Custody

Chain of custody is the documented record of who handled a piece of evidence, when, and what they did with it, from collection through to presentation. An unbroken chain supports the claim that evidence is what it purports to be and has not been altered; gaps invite challenges to its admissibility.

#### Responsive Records

Responsive records are the documents and data that actually fall within the scope of a specific request. Determining what is responsive is a scoping judgement, and getting it wrong in either direction means either failing to comply or disclosing more of a user’s data than the law required.

See how Kodex tracks preservation and hold obligations.
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