Legal Hold Best Practices For Managing Digital Evidence

Nick Rapp died in the Kitsap County Jail on January 2, 2020. When his family sued, the county realized it had a major problem: the jail had not followed proper evidence preservation measures. 

11 hours of jail surveillance video that included important information on what happened to Rapp had been overwritten. Not destroyed on purpose, but simply deleted, all because nobody stopped the routine deletion process in time.

A federal judge issued a default judgment against Kitsap County for spoliation of that video evidence. The county eventually settled the case for $2.75 million in early 2026. (Rapp v. NaphCare, Inc., No. 3:21-cv-05800, W.D. Wash.)

This is what a failed legal hold looks like: an auto-delete policy nobody paused, a window that closed quietly. The legal duty to preserve evidence kicks in the moment litigation is reasonably foreseeable, often weeks or months before a complaint is filed. Miss that window and the consequences range from sanctions and adverse jury instructions to case dismissal.

This guide covers the full legal hold process: what it is, what triggers it, how to issue one correctly, and how to manage digital evidence — including the mountains of audio and video files that can trip up even the most experienced legal teams.

What Is A Legal Hold?

A legal hold is a formal order issued within an organization to pause data deletion and preserve evidence that might be relevant, in anticipation of a lawsuit or investigation. You may also hear it called a litigation hold or preservation hold.

Legal holds apply to all forms of evidence: emails, text messages, documents, spreadsheets, social media records, and increasingly, audio and video files. 

Under Rule 37(e) of the Federal Rules of Civil Procedure, parties to litigation must take "reasonable steps" to preserve electronically stored information (ESI). Failure to comply can result in significant court-imposed sanctions. This is bigger than just a fine, as failure to comply can sometimes cause your entire case to get dismissed.

The duty to preserve is not limited to what's currently in a lawsuit. It begins the moment litigation is "reasonably anticipated," and it’s a standard courts take seriously even before a complaint is filed.

What Is A Legal Hold Notice?

A legal hold notice is the written communication that formally alerts employees and other custodians to preserve relevant data. It is the mechanism through which an organization fulfills its preservation duty, and can also be referred to as a legal hold letter or preservation notice.

A strong legal hold notice should clearly identify the subject matter of the dispute, what type of data needs to be preserved, the systems and locations where that data likely lives, and instruct recipients to suspend routine deletion or overwriting protocols. Crucially, it needs to be in writing, as verbal instructions or casual emails are unlikely to satisfy many courts' good faith standards.

When A Legal Hold Can Be Filed

The threshold for issuing a legal hold is low. The duty to preserve arises whenever a lawsuit becomes a reasonable possibility — not a certainty. Courts don’t require a complaint to have already been filed. In practice, that means legal teams need to move fast.

Common triggering events include:

• Receipt of a demand letter or formal complaint
• Government investigation or regulatory inquiry
• EEOC charge or employment dispute
• Internal investigation into misconduct or fraud
• Merger or acquisition where litigation is foreseeable
• Data breach or cybersecurity incident likely to produce claims
• Subpoena or court order
• Any internal communication that signals likely legal action

How to File a Legal Hold

There is no single universal format for a litigation hold policy, but courts expect the process to be documented, repeatable, and defensible. Here is a step-by-step breakdown of how to do it right.

1. Identify The Trigger

The first step is recognizing that litigation is reasonably anticipated. This sounds simple, but it requires legal teams and/or business stakeholders to be vigilant. Not every complaint, heated email, or customer dispute will require a hold. But when the circumstances suggest a real risk of formal legal action, consider the clock started.

Document everything, starting from the first step you take. This record becomes part of your audit trail if your process is ever challenged.

2. Scope The Size Of The Hold

Once you've identified the trigger, determine the scope: What are the main issues? Who has relevant evidence? What systems, devices, and platforms need to be considered as part of the hole?

In today’s online world, this often includes texts, tools like Slack and Teams, shared drives, cloud storage, CRM records, and audio and video files. Organizations generate terabytes of this type of data daily, and some of it may hold the key to your upcoming litigation.

“The most commonly overlooked category is off-channel messaging and attachments,” explains Carl Nagle, Founder and Lead Attorney at Nagle & Associates. 

“People think of texts and emails, but miss in-app chats and attached photos, videos, location pins and voice notes that give those conversations meaning. Reactions, edits and deleted-message markers can matter too, yet they are easy to lose if preservation focuses only on what is visible on-screen.”

3. Identify Custodians

Custodians are the people who have (or might have) relevant evidence. This includes employees, contractors, security teams, and even former employees.

Work with HR and IT to map custodians to the relevant data sources they control. Employment changes don't terminate a hold. If a custodian leaves during active litigation, their data must still be preserved.

4. Issue The Legal Hold Notice

Send the legal hold notice in writing to all identified custodians. The notice should include the reason for the hold, what data must be preserved, where that data is likely stored, clear instructions to stop any auto-delete procedures, and an acknowledgement deadline.

Your IT team should also get a similar letter, asking to disable automated processes for the time being. Getting written confirmation from them that the task(s) have been completed will give you an extra layer of protection come litigation time.

5. Collect And Preserve Data

Outside of sending a notice, you also need to take concrete steps to preserve the data technically. For text and document-based ESI, preservation tools can lock data where it lives without moving it. 

But when it comes to audio and video files, this gets more complex. A body camera recording, deposition video, or recorded call often requires specialized handling to ensure metadata integrity is preserved and the file never gets altered. 

As shown in the Rapp v. NaphCare case mentioned above, courts will take this issue seriously and aren’t afraid to impose sanctions or default judgments as needed.

6. Monitor And Update The Hold

Legal holds aren’t set in stone forever. As your case evolves, new custodians may be identified, and employees come and go. The hold must be actively managed throughout the entire process.

To do this, make sure to send periodic reminders about the hold and revisit the scope if there are major developments. If you aren’t hearing back from any particular party, start the escalation process immediately. Remember: non-compliance is a risk that compounds over time.

7. Release The Hold

When the matter is resolved (this could be through settlement, dismissal, verdict, or the end of an investigation), issue a formal hold release to all involved parties. This allows normal data retention practices to resume and signals that their preservation obligations are complete.

Similar to the rest of the legal hold process, make sure this step is a formal notice. A documented, written release will help protect your organization long-term.

Potential Legal Hold Issues

Even well-intentioned legal hold processes can run into trouble. Here are the most common complications and how to address them.

• Delayed implementation: One of the biggest issues you can run into is waiting too long to issue a hold after the trigger event. 
  
  • The fix: Build a process that activates the moment legal exposure is identified to avoid court sanctions or other issues.
• Inadequate scope: Failing to include all types of important data, from audio files and Slack messages to traditional paperwork. 
  
  • The fix: Build your scope to reflect where data actually lives today, not where it lived five years ago.
• Allowing self-collection: Asking non-legal personnel to collect their own relevant data can cause a whole host of problems and can cause you to miss the reasonableness standard. 
  
  • The fix: Use professional collection processes that preserve metadata.
• Manual tracking: Using emails and spreadsheets to track and manage digital evidence can lead to chain of custody issues, missed evidence, and even security breaches.
  
  • The fix: Legal hold technology automates tracking and compliance documentation.
• Custodian departures: When a custodian leaves the company, their data preservation obligation doesn't go with them. 
  
  • The fix: Flag HR to alert your legal team whenever a custodian on hold resigns or is terminated, to ensure their data is protected.
• Policy gaps: Without a specific policy outlined for your team, every piece of data preserved could be formatted differently, or held in different locations. 
  
  • The fix: Create a repeatable process with templates, defined roles, and clear best practices before litigation arrives.

The Future of Legal Holds

The data landscape that legal holds must cover is growing fast. Audio and video files are now a significant portion of discoverable evidence in litigation — and one of the most difficult to manage. 

The video surveillance market alone is projected to reach $88.06 billion by 2031. Add body-worn cameras, recorded depositions, jail calls, and Zoom meetings to the mix, and you get an evidence category that old-school discovery workflows were never built to handle.

Legal hold software is evolving to meet this challenge. AI tools are helping legal teams surface relevant evidence faster, search across thousands of files simultaneously, and generate citable summaries that hold up in court. For legal teams managing audio and video as part of a hold, legal hold technology that integrates transcription, search, and source verification is a practical necessity.

Rev helps legal teams manage exactly this kind of evidence. Our Investigative Intelligence Platform processes audio, video, images, and documents and turns them into searchable, citable records. Every finding is tied to a timestamp in the source file, so your team can locate the key moment in a two-hour recording in seconds rather than hours. 

That's what modern legal hold technology should look like: not just preservation and collection, but true, interactive data management.

Manage Your Evidence. Manage Your Hold.

A legal hold is only as good as the process behind it. Upgrade your legal hold workflow by integrating technology that knows how complex cases can be. 

But don’t just take our word for it. We’ve helped legal teams across the country save time and find evidence faster. Here’s what Ken Miller, the president of U.S. ISS Agency, has to say about working with us:

"Moving to Rev was a crucial part of creating a cost-efficient and time-efficient model for our clients and our organization itself. The final product from Rev is accurate, and it's exceptionally well done."