United States: 10 Tips for Litigation Hold Plans

A "litigation hold plan" guides an organization in carrying out its evidence preservation obligations.  Many factors come into play when the need to preserve records is triggered, and each organization has unique systems, policies, and practices. There is no one-size-fits-all plan, but there are important considerations that should be addressed. 

In our first post in this series, we discussed events that can trigger a litigation hold and policies to have in place before you are faced with a legal hold. In this post, we provide more details on how to use your litigation hold policy to implement a litigation hold plan when you are hit with a hold.  

1. Identification of Key Players, Departments, and Data Sources (All vs. Targeted)

The plan should address the need to consider the scope of the preservation. In some cases it may be necessary to implement a company-wide preservation, while in other cases it makes more sense to target only key individuals or departments. While this decision will likely be driven by the scope of the lawsuit at issue, that is not the only factor. For example, making sure the scope is no broader than necessary will help maintain the attorney-client privilege and work product protection with respect to the hold notice and related documents.

Our second post in this series provides further details on how to inform key employees on how to preserve documents. 

2. Interviewing Key Individuals

The plan should emphasize the benefits of identifying key individuals and arranging personal meetings with them. Face-to-face meetings with individuals likely to possess the most sensitive or largest amounts of information can be tremendously beneficial in terms of learning what the company knows and where relevant records are likely to be found. Not every potential custodian needs to be personally interviewed; those who play a less significant role can usually describe their knowledge and preservation practices via a questionnaire or survey. 

3. Prioritization of Tasks

It may be useful to prioritize the tasks that ought to be accomplished first and foremost. For example, email is typically the most important source for preservation. One should not wait to preserve email of key employees while determining what other sources of information should also be preserved. A delay could result in the inadvertent loss of emails or other data.

Creating a data map can help you identify and prioritize preserving information. Our third sample litigation hold data map.

4. Accessible vs. Inaccessible information

The plan should reflect the need to strike a balance when it comes to information sources that are not easily accessible. Common types of generally inaccessible information are backup tapes and legacy systems. For backup tapes, provided the tapes are not the sole source of information, it may be cost prohibitive to restore, search, and extract information from those sources. The same can be said with respect to legacy systems, which are the old, obsolete systems or files that are retained but no longer in use. The cost to restore and analyze this data may be cost prohibitive, particularly where the data has already been migrated to a newer system that is currently in use. The primary goal is to create a prudent and responsible plan to preserve all relevant records. 

5. Duplicate Sources

The plan should address the scenario where identical information is found in two or more locations.  When data is truly duplicative, preserving it in multiple locations may not be necessary. The key is to make sure it is a true duplication and then securely preserve it in at least one location.

6. Preservation in Place vs. Preservation by Collection

The plan should discuss the difference between preserving records in the location where they are kept (in the ordinary course of business) and collecting all of the records in a single location. For electronic records, some IT systems allow for a "lock down" such that data cannot be deleted, overwritten, modified or altered in any way. This may also be the case with email journaling or archiving systems. Absent a lock down feature, it may be more prudent to collect the data in a single location, but be mindful that moving electronic records may alter their metadata. 

7. Forensic Collection vs. Active File Collection

The plan should explain the potential need for a forensic investigator to collect a byte-by-byte copy of a computer device. As an example, this might be necessary in a lawsuit involving allegations of trade secrets or other confidential information being downloaded and/or transmitted. A forensic investigator would examine the unused or deleted slack space on a computer's hard drive, and also the computer's system files to see what data was copied and what Internet sites were visited. Naturally, a forensic investigator is not necessary in every case. In most situations, an active file collection – where only the active, non-deleted files on a computer (or in a targeted location on a computer) are securely copied – will be sufficient. 

8. Utilization of Third-Party Service Providers

When implementing a preservation plan, it is important to be mindful of the IT department's capabilities, resources, and limitations. It may be prudent to enlist the help of outside service providers. The plan should highlight the need to consider this issue in the context of each case.  

9.  Cost and Time Analysis

What is the cost associated with preservation? Will there be business interruption, IT impact, added storage requirements, and associated costs or risks with retaining information beyond its normal life cycle? Examining these issues is important when considering the scope and reasonableness of the preservation.    

10. Departed (or Departing) Employees

The plan should address specifically what the company generally does with data when employees leave the company. Just because a custodian is no longer with the company does not necessarily mean that their records (such as email files) no longer exist. If a departed employee's data does exist at the time a litigation hold obligation is triggered, then it must be retained.  It is important that the company's legal advisors and IT personnel be on the same page concerning what records need to be retained and for how long.

 While you cannot anticipate all events that may trigger a legal hold, understanding the elements of a Litigation Hold Plan and having a Litigation Hold Policy in place at your company will help you implement a hold more quickly and efficiently.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.