Know When to Hold Em: Building a Defensible Legal Hold Process

In our last post, we discussed differences in legal hold obligations between regulatory investigations and civil litigation.

In today’s data-driven world, designing a defensible legal hold process is no longer a simple administrative task – it’s a strategic capability. Organisations operate across a patchwork of enterprise platforms, collaboration tools, mobile devices, structured databases, and even generative AI systems. When litigation or an investigation arises, legal teams must act quickly and confidently to preserve relevant electronically stored information (ESI) across this complex landscape.

The challenge is not just issuing a legal hold: it is building a repeatable, scalable workflow that ensures preservation obligations are met consistently, transparently, and defensibly. That requires thoughtful design, cross-functional coordination, and the right technology to support execution. In this post, we will outline nine key steps organisations should take to design and operationalize a modern legal hold workflow.

Step 1: Establish Clear Triggers and Governance

A defensible legal hold process begins long before the first notice is issued. Organisations must define what events trigger preservation obligations and who is responsible for making that determination. Litigation isn’t the only trigger – regulatory inquiries, internal investigations, whistleblower complaints, and significant incidents can all give rise to the duty to preserve.

Clear governance ensures that potential triggers are identified early and escalated appropriately. This requires coordination between legal, compliance, HR, and business stakeholders. Without this structure, organisations risk delays in issuing holds, which is one of the most common and consequential preservation failures.

Equally important is defining ownership of the legal hold process itself. Who drafts notices? Who manages custodian lists? Who coordinates with IT? Assigning clear roles and responsibilities avoids confusion and ensures accountability.

Step 2: Build and Maintain a Data Map

You can’t preserve what you don’t understand. A comprehensive data map is foundational to any effective legal hold workflow. It should identify the systems where data resides, the types of information stored in each system, retention policies, and key stakeholders responsible for those systems.

Modern data environments include far more than email and file shares. Organisations must account for:

• Cloud platforms like Microsoft 365 and Google Workspace
• Collaboration tools such as Slack and Teams
• Mobile devices and messaging apps
• Structured data in enterprise systems (ERP, CRM, finance)
• Emerging sources such as generative AI tools

A well-maintained data map allows legal teams to quickly identify relevant data sources and coordinate preservation efforts. It also reduces the risk of incomplete scoping, which is another frequent source of preservation failure.

Step 3: Develop Standardised, Flexible Legal Hold Notices

Legal hold notices are the primary mechanism for communicating preservation obligations to custodians. To be effective, they must strike a balance between standardization and flexibility.

Standardization promotes consistency. Templates can include core elements such as:

• A clear explanation of the matter
• The scope of relevant data
• Instructions to preserve and not delete information
• Examples of relevant data types
• Contact information for questions
• Acknowledgement requirements

Flexibility allows notices to be tailored to the specific matter, custodians, and data sources involved. For example, a hold involving collaboration tools may include specific guidance on preserving chat messages and shared files, while a matter involving structured data may require instructions related to system usage.

Plain language is critical. Custodians must understand what is expected of them. A notice that is legally precise but practically confusing undermines compliance.

Step 4: Identify and Validate Custodians and Data Sources

Once a hold needs to be issued, the next step is identifying who holds relevant information and where that information resides. Initial custodian lists are often based on limited information and must evolve as the matter evolves.

Effective workflows incorporate:

• Early custodian interviews or questionnaires
• Collaboration with business leaders and IT
• Ongoing reassessment of custodian scope

In today’s environment, it’s also important to think beyond individual custodians. Shared repositories, collaboration channels, and system-level data may be just as important as personal data. A defensible workflow captures both.

Validation is key. Legal teams should confirm that identified systems and custodians align with the known facts of the matter. Assumptions can lead to gaps, and gaps can lead to risk.

Step 5: Issue Holds Promptly and Track Acknowledgement

Once a trigger is identified, legal holds should be issued without delay. Prompt action demonstrates diligence and helps prevent the loss of relevant data.

Equally important is tracking acknowledgement. Organisations must be able to show that custodians received, reviewed, and understood their obligations. This requires more than sending emails: it requires a system for monitoring responses, sending reminders, and escalating noncompliance.

Just as important is ensuring the hold notice includes a clear, compelling call to action. Legal holds may contain multiple pages of information, which increases the risk that custodians will skim rather than fully review the notice. Clearly defined, easy-to-find action items help focus attention on what matters most and significantly improves acknowledgement rates.

Manual tracking through spreadsheets have been largely replaced by automated legal hold platforms that provide visibility into acknowledgement rates, outstanding responses, and overall compliance, enabling legal teams to manage the process more effectively.

Step 6: Coordinate with IT to Suspend Deletion

A legal hold is only effective if it prevents data from being deleted. This requires close coordination with IT and information governance teams to ensure that retention policies, auto-deletion settings, and system behaviors are aligned with preservation requirements.

This step often includes:

• Applying holds within enterprise platforms (e.g., Microsoft 365, Google Workspace)
• Disabling auto-delete settings for collaboration tools
• Suspending auto-deletion of text messages
• Ensuring that backup and archival processes do not overwrite relevant data

Preservation in place is increasingly the preferred approach, allowing data to remain in its native environment while preventing deletion, but it must be implemented carefully and verified to ensure effectiveness.

Step 7: Engage Custodians and Provide Ongoing Support

Custodian engagement is an ongoing process, not a one-time event. Employees need clear instructions, accessible support, and periodic reminders to maintain compliance over time.

Effective workflows include:

• Periodic reminder notices
• Updates when scope changes
• Clear points of contact for questions
• Guidance tailored to specific data sources (e.g., chat, mobile, cloud storage)

In complex matters, targeted training or direct communication may be necessary. The goal is to ensure that custodians not only acknowledge the hold but also understand how to comply in practice.

Step 8: Monitor, Audit, and Document the Process

Defensibility depends on documentation. Organisations must be able to demonstrate what actions were taken, when they were taken, and by whom.

A robust workflow includes:

• Audit trails of legal hold notices and acknowledgments
• Records of custodian additions and removals
• Documentation of preservation actions taken by IT
• Logs of reminders and communications
• Evidence of system-level preservation controls

Regular monitoring and auditing help identify gaps before they become problems. They also provide confidence that the process is functioning as intended.

Step 9: Release Holds and Resume Normal Operations

When a matter concludes or preservation is no longer required, legal holds should be formally released. This allows organisations to resume normal retention and deletion practices, reducing data volume and maintaining governance discipline – assuming the data isn’t subject to other legal holds, that is.

The release process should be documented and communicated clearly to custodians and IT. Failing to release holds can lead to unnecessary data accumulation and undermine defensible deletion efforts.

Conclusion

Building a defensible legal hold process is not about any single step. It’s about creating an integrated workflow that connects governance, technology, and human behaviour. From identifying triggers to releasing holds, each stage must be thoughtfully designed and consistently executed.

In today’s diverse data environment, organisations that succeed are those that move beyond ad hoc processes and embrace structured, scalable workflows. By combining clear governance, accurate data mapping, effective communication, and modern technology, legal teams can ensure that preservation obligations are met with confidence.

In our last post in the series, we’ll look ahead at how technology and evolving data sources will shape preservation practices. Stay tuned!

For more regarding Cimplifi eDiscovery, litigation, and investigations capabilities, click here.