Litigation Hold Management

Overview

A litigation hold (also called legal hold or preservation order) is a directive to preserve all data and documents relevant to pending or reasonably anticipated litigation, regulatory investigation, or audit. Litigation holds override normal retention schedules and automated deletion processes — data subject to a hold must NOT be deleted, modified, or destroyed until the hold is formally released. This skill provides the complete operational framework for issuing, tracking, implementing, and releasing litigation holds, including the critical interaction between holds and GDPR data retention and erasure obligations.

Legal Foundation

GDPR Article 17(3)(e) — Legal Claims Exception

The right to erasure does not apply where processing is necessary for the establishment, exercise, or defence of legal claims. This is the primary GDPR basis for retaining personal data under a litigation hold beyond its normal retention period.

Duty to Preserve (Common Law Jurisdictions)

In England and Wales, the duty to preserve documents arises when litigation is reasonably contemplated or has commenced:

• CPR Part 31 (Civil Procedure Rules): Imposes disclosure obligations once proceedings are issued.
• Practice Direction 31B: Electronic disclosure — requires parties to preserve electronic documents once litigation is reasonably anticipated.
• Spoliation doctrine: Intentional or negligent destruction of relevant evidence after litigation is anticipated can result in adverse inferences, costs sanctions, or striking out of claims.