What this risk is, and why it matters
A litigation hold suspends routine deletion and preserves documents once a dispute is reasonably foreseeable. For a senior executive the risk is twofold: failing to impose one in time, which can lead to spoliation findings, adverse inferences or sanctions, or imposing one so broadly that it disrupts operations and inflates later review costs. Modern data sprawl across email, messaging apps, personal devices and cloud platforms makes scoping genuinely difficult. The duty often arises earlier than people assume, before any claim is formally served.
Legal and regulatory framework
The duty to preserve evidence is recognised across civil procedure regimes and is triggered when litigation is reasonably anticipated, not merely when proceedings begin. Courts can impose sanctions for spoliation ranging from adverse-inference directions to cost penalties and, in serious cases, striking out a claim or defence. Data-protection and employment law constrain how devices and personal accounts are accessed, so preservation must be reconciled with privacy obligations.
Typical scenarios and impact
A proportionate hold costs management time and some IT effort, while a failure can be far more damaging: adverse inferences that effectively decide the case, sanctions, and the cost of forensic recovery. Over-broad holds inflate downstream review costs, which in document-heavy disputes can reach the hundreds of thousands. The report presents these as ranges and stresses that the cost of preserving is almost always trivial against the cost of failing to.
Mitigation framework and when to engage an expert
Identify custodians and data sources, issue clear written hold notices, suspend auto-deletion, and document the steps taken. Reconcile preservation with data-protection and employment duties before accessing personal devices or accounts. Engage litigation counsel to define scope and trigger date, supported by e-discovery or forensic specialists for complex or multi-system environments, and refresh the hold as custodians and issues evolve.