Preservation Notices 

A preservation notice, also called a litigation hold notice or legal hold, is a formal communication requiring a party, organisation, employees, custodians, or other persons under its control to preserve documents and electronically stored information (ESI) that may be relevant to pending or reasonably anticipated litigation. The purpose is to prevent destruction, alteration, deletion, overwriting, or loss of potentially relevant evidence.

1. Meaning and purpose

A preservation notice generally performs two connected functions:

1. Identifies the existence of a preservation obligation.
2. Instructs relevant custodians and systems personnel what information must be preserved.

The notice is not necessarily limited to paper documents. Depending on the dispute, its scope may include:

• emails;
• employment records;
• contracts and agreements;
• electronic files;
• text messages;
• workplace messaging applications;
• cloud documents;
• databases;
• spreadsheets;
• photographs and videos;
• mobile-device information;
• metadata;
• relevant paper records; and
• other ESI within the party's possession, custody, or control.

The scope should be connected to the issues in dispute rather than simply requiring an organisation to preserve every record it possesses. Courts have recognised that an unlimited preservation obligation would be impractical.

2. When does the preservation duty arise?

A central question is when litigation becomes reasonably anticipated.

Under the influential U.S. e-discovery jurisprudence, the preservation obligation can arise before a formal lawsuit is filed when a party reasonably anticipates litigation. Once the obligation arises, ordinary destruction or deletion practices may have to be suspended for relevant information.

Examples of possible triggering circumstances include:

• receipt of a serious legal demand;
• a threatened employment claim;
• an accident likely to result in litigation;
• a regulatory investigation;
• a dispute involving potentially important electronic evidence; or
• receipt of a preservation notice from the opposing party.

The precise trigger remains fact-dependent.

3. Scope of a preservation notice

The scope should ordinarily be determined by examining:

A. Subject matter
What claims, allegations, transactions, or events are involved?

B. Time period
What period could reasonably contain relevant evidence?

C. Custodians
Which employees, officers, contractors, investigators, HR personnel, managers, or other individuals possess relevant information?

D. Data sources
Where is potentially relevant information stored?

E. Types of information
What categories of documents or ESI could reasonably relate to the dispute?

A well-designed notice therefore normally identifies the matter, relevant subjects, custodians, relevant time period, and categories of information rather than merely saying "preserve everything."

4. Preservation notice does not mean preserving everything

One of the most important principles is reasonableness.

An organisation generally does not have to preserve every email, every document, or every backup merely because litigation is possible. The preservation effort should be reasonably related to information that the party knows or reasonably should know may be relevant to the dispute.

For example, in an employment discrimination dispute, the preservation scope might reasonably include:

• personnel records of the claimant;
• communications concerning the challenged employment decision;
• relevant HR records;
• communications involving decision-makers;
• performance evaluations;
• disciplinary records;
• relevant emails and messages; and
• documents concerning comparable employees.

It would not automatically require preservation of every unrelated document held by the employer.

5. Custodian identification

The notice should reach people who are reasonably likely to possess relevant information.

For example, in a wrongful-termination dispute, possible custodians may include:

• the employee's manager;
• HR personnel;
• senior management involved in the decision;
• investigators;
• payroll personnel where compensation is disputed; and
• IT personnel where electronic evidence requires technical preservation.

The custodian list should be based on the facts of the dispute rather than simply copying the organisation's entire employee directory.

6. Electronic information and modern communication systems

The scope of preservation has expanded substantially because relevant evidence may exist outside traditional email systems.

Depending on the circumstances, preservation may need to address:

• Microsoft Teams or similar collaboration tools;
• Slack;
• text messages;
• mobile phones;
• cloud storage;
• shared drives;
• employee laptops;
• databases;
• collaboration platforms; and
• other business communication applications.

Recent cases have demonstrated that deletion of text messages and information maintained on collaboration platforms can create serious preservation problems.

7. Metadata

Where electronically stored information is relevant, preservation can extend beyond the visible text of a document.

Metadata may reveal:

• creation date;
• modification date;
• author;
• file history;
• transmission information; and
• other information concerning the electronic record.

Consequently, converting an electronic document into another form and destroying the original may potentially eliminate information relevant to the dispute.

8. Suspension of ordinary deletion policies

Once a preservation obligation attaches, relevant routine deletion practices may need to be suspended.

Examples include:

• automatic email deletion;
• deletion of employee accounts;
• recycling of certain storage media;
• automatic deletion of messages;
• document-destruction schedules; and
• other processes that could destroy potentially relevant information.

Importantly, the hold generally does not require suspension of every records-management policy throughout the organisation. The suspension should ordinarily concern information falling within the preservation scope.

9. Continuing obligation

Issuing the notice is not necessarily the end of the preservation process.

Counsel and the organisation should consider:

• whether recipients understood the notice;
• whether custodians acknowledged it;
• whether new custodians became relevant;
• whether new data sources emerged;
• whether automatic deletion was actually suspended;
• whether the scope needs to be expanded; and
• whether the hold should be periodically refreshed.

Courts have emphasised that merely sending a litigation hold does not necessarily satisfy the entire preservation obligation; compliance may need to be monitored.

Important Case Laws

1. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)

This is one of the foundational cases concerning preservation of electronic evidence.

The court held that the duty to preserve arises when a party reasonably anticipates litigation. Once that duty arises, the party must take reasonable steps to preserve relevant information.

The case is particularly important because it established the basic relationship between the anticipation of litigation, litigation holds, and preservation of relevant electronic information.

Principle: Preservation obligations can arise before commencement of formal proceedings.

2. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) – Zubulake V

The court emphasised that issuing a litigation hold is not sufficient by itself. Counsel must take reasonable steps to ensure that the hold is implemented and complied with.

The decision is frequently cited for the proposition that lawyers should supervise preservation efforts rather than simply send a notice and assume that the evidence has been protected.

Principle: A preservation notice must be effectively implemented and monitored.

3. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010)

This case examined failures in preserving electronically stored information and became an important authority concerning litigation holds and preservation practices.

The court considered failures such as inadequate preservation efforts and delays in implementing a proper hold.

The decision is commonly described as "Zubulake Revisited" because it revisited the preservation principles developed in the Zubulake litigation.

Principle: The adequacy and timing of preservation efforts can materially affect the consequences of lost ESI.

4. Sekisui America Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013)

The case concerned the destruction of electronically stored information after the preservation obligation had arisen.

The court examined the failure to implement an adequate litigation hold and the destruction of potentially relevant evidence.

Principle: A significant delay in issuing a preservation hold, particularly where relevant evidence is subsequently destroyed, can expose a party to serious discovery consequences.

The case has subsequently been cited in discussions concerning failures to issue litigation holds promptly.

5. Apple Inc. v. Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132 (N.D. Cal. 2012)

This litigation involved extensive electronic discovery and preservation issues.

The court considered whether adequate steps had been taken to preserve electronic evidence and emphasised the importance of reasonable procedures for implementing and monitoring litigation holds.

Principle: Organisations must take affirmative and reasonable measures to preserve relevant electronic information rather than relying solely on passive record-retention practices.

6. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002)

This case is an important authority concerning spoliation of evidence and sanctions.

The court considered the destruction of relevant evidence and the circumstances in which a party's culpable conduct could justify an adverse inference.

Principle: Failure to preserve relevant evidence can have evidentiary consequences where the required elements for spoliation are established.

7. In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385 (S.D. Ill. 2013)

The court criticised the defendants' preservation efforts and found significant deficiencies in the litigation hold process.

The case illustrates an important point concerning scope: the preservation process must respond to the actual development and breadth of the litigation rather than remaining artificially narrow when the issues and potentially relevant evidence have expanded.

Principle: A preservation notice may need to be expanded when the scope of litigation or the relevant evidence expands.

Key principles in one view

Conclusion

Preservation notice scope is fundamentally a question of reasonableness, relevance, and proportionality. A properly drafted notice should be sufficiently specific to tell custodians what information, whose information, which time period, and which systems must be preserved. At the same time, it should not unnecessarily require preservation of unrelated information. The major authorities, particularly Zubulake, Pension Committee, Sekisui, Apple v. Samsung, Residential Funding, and Pradaxa, demonstrate that preservation is an ongoing process rather than merely the act of sending a single notice.