A litigation hold letter is the written instruction that tells a client, an opposing party or a nonparty to stop routine deletion and keep what may matter to a dispute. Sent late, written in boilerplate, or sent and then forgotten, the same letter becomes evidence of what your team did not do. Sent early and specifically, it is the backbone of a defensible preservation record.
This guide covers the three kinds of preservation letters, when the duty to preserve is usually triggered, what each letter should contain, two templates you can adapt, how to keep a hold alive through the life of a matter, and the mistakes that commonly undermine one.
What is a litigation hold letter, and how is it different from a preservation letter?
A litigation hold notice goes to your own side and instructs people to preserve. A preservation letter goes to the opposing party or a nonparty and asks them to preserve. The distinction matters because the audiences, tone and legal effect differ.
| Letter | Sent to | Purpose |
|---|---|---|
| Client hold notice | Your client and, for organizations, each custodian plus IT and records staff | Suspend deletion and document reasonable preservation steps |
| Preservation demand | Opposing party or its counsel | Give notice of specific sources and frame later discussions about scope |
| Nonparty request | Platforms, carriers, employers, schools, property managers | Ask a nonparty to keep records before routine deletion |
Nonparties generally have no duty to preserve unless an agreement, subpoena or court order creates one, so a nonparty request is often a courtesy backed by a prompt subpoena under Rule 45 or your state’s equivalent.
When should you send a litigation hold?
As soon as litigation is reasonably anticipated, which is often well before anything is filed. Federal Rule of Civil Procedure 37(e) speaks of information that should have been preserved “in the anticipation or conduct of litigation,” and state standards use similar concepts. Common trigger events include:
- The client receives a demand letter, a threat of suit or a preservation letter
- The client decides to pursue a claim or retains counsel to evaluate one
- An event occurs that commonly leads to claims, such as an injury, a termination or a notice to vacate
- A family-law client consults about separation, custody or a protective order
- A government inquiry or subpoena arrives
- A complaint is served, which is the latest trigger, not the default one
For most small-firm matters the practical answer is the engagement meeting. In family cases especially, phones get replaced and threads get deleted during separations, so the hold belongs in the intake packet. Record the date you issued it and why. Whether a duty has attached on particular facts, and how far it reaches, is a judgment for the responsible attorney under the governing jurisdiction’s law.
What should a litigation hold letter include?
Specific sources, concrete actions and a clear duration. A client cannot follow an instruction to preserve “all ESI,” but they can follow an instruction to turn off a named setting on a named phone.
- A neutral description of the dispute, enough to identify relevant information, with no strategy. Assume a court could someday review the notice if preservation is disputed.
- A date range that starts early enough and runs forward until further notice
- Categories described in the client’s terms, such as “texts and chats with [name]” or “photos of the unit”
- Each source: every phone, email account, messaging app, social media account, cloud account, computer and paper file
- Concrete actions: disable auto-delete and disappearing messages, keep backups, keep old devices, do not reset, trade in or discard any device
- What not to do: no deleting, editing, renaming or “cleaning up” files, posts or accounts
- Duration: the hold lasts until a written release from the firm
- A contact person, and how to report a lost device or an accidental deletion
- A request for signed acknowledgment by a specific date
- For organizations: instructions to suspend automated deletion, mailbox purges and account removal for departing employees
Social media: preserve before anything changes
Clients often want to lock down or delete accounts once a dispute starts. Bar ethics opinions that address the issue generally treat adjusting privacy settings differently from destroying relevant content, and they stress preservation. A safe operating rule for staff: before any privacy change, deactivation or removal, the client downloads a complete copy of the account data and the attorney signs off. Our guide to collecting social media evidence covers the download formats.
Template: client hold notice for an individual
Individual clients need plain language and a short list of actions. Adapt this to the matter and have the responsible attorney approve the final text.
Template
Dear [Client], because [neutral description, e.g., you and your former landlord disagree about the deposit and the condition of the unit], you are required to keep information that may relate to this dispute, starting now. This includes information you think may not help you.
Please keep, and do not delete, edit or throw away: texts, chats and call logs with [names]; emails with [names]; photos and videos of [subject]; social media posts, comments and messages about [subject]; and calendars, notes, receipts and bank records from [start date] forward.
This week, please: (1) set every messaging app to keep message history indefinitely and turn off disappearing messages; (2) do not trade in, reset or replace any phone, tablet or computer without calling us first; (3) do not delete or deactivate any social media account or post, and call us before changing settings; (4) keep your existing backups.
These instructions last until we tell you in writing that they have ended. If a device is lost or broken, or you realize something was deleted, tell us right away. Please sign and return the acknowledgment below by [date].
Template: preservation demand to opposing counsel
A preservation demand works best when it is specific enough to act on and narrow enough to be taken seriously.
Sample wording
We represent [client] in connection with [matter]. We ask that your client preserve all documents and electronically stored information relevant to the claims and defenses, including [specific categories]. This includes, without limitation: each mobile phone used since [date], including any replaced device; text, iMessage and chat app accounts; co-parenting or scheduling app accounts; email and social media accounts; and cloud backups. Please ensure that auto-delete settings, disappearing-message timers and message-retention limits are disabled, and that no device is reset, replaced or discarded before its contents are preserved. Please confirm by [date] that these steps have been taken, and tell us if any relevant data has already been lost so the parties can address it promptly.
How do you make a litigation hold stick?
Treat the hold as a process with a log, not a single letter. Each step below should leave a dated entry.
- Collect acknowledgments. Follow up on anything missing by the deadline and note it in the hold log.
- Interview custodians. Confirm the sources and settings named in the notice, and update the data map with anything new.
- Collect early where practical. The best preservation for a phone about to be replaced is a completed export, stored and fingerprinted. Tools such as Evidence Helper keep each submitted original untouched and record a SHA-256 hash on arrival, turning “the client sent it” into a documented preservation step.
- Send reminders. Re-issue the notice at regular intervals and at milestones: new claims, new parties, upcoming depositions.
- Update scope. Add custodians, sources or date ranges as the case develops, and record why.
- Watch for departures and device changes. Departing employees and phone upgrades are where held data often disappears.
- Release in writing. When the matter and any appeal or related proceeding are over, release the hold and return the client to its normal retention schedule. See our guide to document retention for litigation files.
What mistakes undermine a litigation hold?
Many failed holds were sent; they just were not specific, tracked or refreshed.
- Boilerplate that says “all documents and ESI” without naming the phone, the apps or the accounts
- No acknowledgment, no follow-up and no reminders
- Assuming the client knows what electronically stored information means
- Ignoring disappearing-message timers and settings that delete older texts automatically
- Not telling the people who run email and devices, so automated deletion continues
- Forgetting replaced phones, former employees and shared family devices
- Including case strategy in a notice that may later be examined
For the broader collection and production workflow that follows a hold, see ESI discovery for small firms.
