We Received a Litigation Hold Letter: What Does Our Company Have to Preserve?

A litigation hold letter is a written demand, usually from another party’s lawyer, that your company stop deleting information tied to a dispute. If your company just received a litigation hold letter, the short answer is to preserve everything that could relate to the dispute it describes, in every format, until your own lawyer tells you that you can stop.

This guide covers what the letter does and does not do, what to keep, who has to act, and what to do first. It is written for a lawsuit defense situation, where the next move can matter.

Does a Litigation Hold Letter Create a Legal Duty to Preserve?

A litigation hold letter is not a court order, but it puts your company on notice that the sender expects a dispute. Florida courts can penalize lost evidence even when no formal duty is found. Treat the letter as your signal to stop deleting anything related to the dispute.

Did a letter just land on your desk? Talk with a Jimerson Birr lawsuit defense attorney before you respond or delete anything.

Florida appellate courts have not spoken with one voice on when a duty to preserve begins. In a 2019 case about a nonparty witness, the Fifth District held that no common law duty to preserve evidence arose from foreseeability alone. It treated a contract, a statute, or a discovery request as the source of the duty.

That ruling concerned a nonparty, and a party to a dispute faces different exposure. The Florida Supreme Court has described the question differently. In League of Women Voters of Florida v. Detzner, a case about legislative records, the Court described earlier Florida decisions finding a duty to preserve when a party should reasonably foresee litigation. It also said that even in the absence of a legal duty, spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence.

Do not count on arguing that no duty existed. Our earlier posts on spoliation of evidence and when companies need to start preserving electronic evidence cover the background.

What Does Our Company Have to Preserve?

Preserve everything that could relate to the dispute the letter describes, whether it helps or hurts your company. That includes records held by the company and by people or vendors acting for it.

• Email and attachments, including archived folders and deleted items
• Text messages and chat apps such as Slack, Teams, and WhatsApp, including personal phones used for work
• Contracts, drafts, proposals, invoices, and accounting records
• Calendars, meeting notes, voicemail, and call recordings
• Shared drives, CRM entries, and project files, with their dates and author details intact
• Records held for you by vendors, to the extent you can get them, such as cloud hosts, payroll providers, outside accountants, and IT consultants
• Paper files and handwritten notes

Who Has to Act, and for How Long?

Everyone who may hold relevant information should stop deleting. As a practical matter, the hold stays in place until your lawyer tells you it can be lifted.

Start with the owners, officers, and managers close to the dispute. Add the employees named in the letter, assistants who handle their files, and the IT staff who control retention settings. Then add outside vendors that store records for you.

Do not let a departing employee’s laptop or phone be wiped, reset, or reissued while the hold is in place.

What Should Our Company Do in the First Week?

As a practical matter, stop automatic deletion, tell the right people in writing, and keep a record of what you did. The electronic-information sanctions rule asks whether a party took reasonable steps, so the paper trail matters.

1. Suspend auto-delete on email, chat, phones, and backup rotation. Our page on issuing a litigation hold and suspending destruction protocols explains this step.
2. List the people and systems tied to the dispute.
3. Send a written hold to those people in plain language: what to keep, what not to touch, and whom to call with questions. See our overview of litigation hold implementation and management.
4. Secure devices that belong to departing or former employees.
5. Leave files as they are. Do not rename, reorganize, or “clean up” anything.
6. Write down what you did and when, including who received the hold.
7. Hold off on replying to the sender until a lawyer has reviewed the letter, and keep new internal commentary about the dispute to a minimum. Our guide to managing internal communications during a business lawsuit explains why.

What Happens If Company Data Disappears After the Letter Arrives?

The remedy depends on the harm and on intent, and the most serious remedies are reserved for intentional destruction. For electronically stored information, Rule 1.380(f) sets the framework. It covers electronic information only, and it looks at what should have been preserved, not at the date the letter arrived.

The rule applies when electronic information that “should have been preserved in the anticipation or conduct of litigation” is lost because a party failed to take reasonable steps, and it cannot be restored or replaced through additional discovery.

• If the other side is prejudiced, the court may order measures no greater than necessary to cure the prejudice.
• Only if the court finds an intent to deprive the other side of the information may it presume the information was unfavorable, instruct the jury to do so, or dismiss the case or enter a default judgment.

The restore-or-replace limit matters. Information that can still be recovered from a backup or another custodian’s files is treated differently from information that is gone for good.

What If a Lawsuit Follows the Letter?

If the sender files suit and your company is served, the answer is generally due 20 days after service under Rule 1.140, unless a statute sets a different time. Discovery follows, and your records become the center of it. Our overview of the stages of a business lawsuit shows where that fits.

Our posts on the first 72 hours after service, what discovery involves, and how defendants lose leverage in the first month walk through what comes next. If the letter came with a payment demand, see what to do before you respond to a demand letter.

Can We Push Back If the Letter Asks for Too Much?

Possibly, but that is a decision for your lawyer, and it is not a reason to delay preserving. A hold letter is the sender’s own demand, so its categories and date ranges reflect the sender’s view of the dispute.

A lawyer can respond to the sender about scope. Joby Birr is a Jimerson Birr partner who practices business litigation. Until that conversation happens, keep what the letter describes.

What Should You Check Before You Respond?

Five facts change how your company should handle a litigation hold letter:

• The date the letter arrived and who sent it, because that date shows when your company was on notice.
• What the dispute is about, and whether the letter names specific contracts, claims, or people.
• Which systems delete data automatically, such as email retention settings, chat history limits, and phone auto-delete.
• Whether anything relevant was deleted, lost, or replaced after the dispute began, including phones and laptops.
• Who holds information on personal devices or outside systems, including vendors.

These facts decide how much your company must keep, how serious any gap may be, and how to answer the sender. An attorney needs to review them.

Not sure whether something was already lost? Talk with a Jimerson Birr business litigation attorney before you try to recover or replace it.

How Can Jimerson Birr Help With a Litigation Hold Letter?

If your company received a litigation hold letter, Jimerson Birr works with companies on litigation hold implementation and management, including identifying key people and data sources, notifying employees of their responsibilities, and monitoring compliance. Call (904) 389-0050 or request a free consultation. If a lawsuit follows, your answer is generally due 20 days after service, and how your company handled its records after the letter arrived can come under review.