If you have just received an employee records preservation order, stop deleting anything that could relate to the matter, read the order carefully, notify your legal department, and preserve every covered record — electronic, physical, and on any personal device you use for work — in its original state until you are formally told the hold has been lifted. Everything else is detail on those four steps.
Stop Deleting Right Now
Before you finish reading the notice, before you email your supervisor, before you do anything else, stop any destruction that could touch the subject of the order. Turn off auto-delete rules in your email client. Disable disappearing messages in any chat or texting app you use for work. Do not empty your trash or recycling folder. Do not shred paper, clear voicemail, or wipe a device.
Courts have consistently held that letting auto-delete functions keep running after a hold is issued is unreasonable. The obligation to preserve overrides your company’s normal retention schedule, so the fact that a file “would have been purged anyway” is not a defense once the notice is in your hands.
Read the Order and Tell Your Legal Team
Once destruction is paused, read the notice closely. Look for the types of records covered, the time period involved, and any named people, projects, departments, or events. That scope tells you what has to be preserved and what does not. If any part is unclear, ask before you act on your own reading.
Then notify the right people. Contact your supervisor, the legal department, or whoever the order lists as the designated contact. If you know of colleagues who likely have relevant information but do not appear to have received the notice, say so. The legal team needs to know who the key custodians are, and you may be the only person who knows a particular email chain existed or that a certain file lives on a shared drive.
Treat the preservation notice itself as confidential. It is typically a privileged communication. Do not forward it outside the organization, post about it, or discuss its contents with people who have no reason to see it.
Preserving Electronic Records
Most preservation problems happen with electronic data, and most of the complexity lives there. Your IT or legal team will usually give specific instructions — server-level deletion policies may be suspended, forensic images taken, database snapshots preserved. Cooperate with whatever process they set up.
A hold covers essentially every format: emails, text messages, voicemails, spreadsheets, presentations, databases, instant messages, social media posts, photos, videos. It applies regardless of where the data sits, whether that is a company server, a cloud service, or a device in your pocket.
Do Not Open, Move, or Rename Preserved Files
Every electronic file carries metadata: when it was created, when it was last opened, who modified it, what changed. Simply opening a spreadsheet can alter its metadata if it contains formulas that recalculate. Copying a file to a new folder changes its “created” date. These small, well-meaning actions can later look like tampering.
So don’t open, move, rename, or copy preserved files unless legal or IT specifically asks you to. If you need to reference a document to keep doing your job, ask IT how to do that without touching the original.
When You Are Not Sure Something Is Relevant
Preserve it. Employees tend to underestimate what matters in litigation. A casual message that looks trivial to you can be critical context for an attorney reconstructing a timeline. The test is not “records I think are important” but “records that could be relevant.” Let the lawyers decide what ultimately matters; your job is to keep the option open.
Personal Phones and Social Media
If you use a personal phone, tablet, or laptop for any work communication, the hold almost certainly reaches those devices. Courts have made clear that preservation duties extend to personal devices that contain potentially relevant data. Disable auto-delete in your messaging apps, back the device up, and keep any texts, photos, or emails that touch on the subject of the hold.
Social media can be swept in too. If the order covers communications about your work or a particular event, posts, direct messages, comments, and even deleted-but-recoverable content on platforms like Facebook, Instagram, or X may be within scope. Most platforms let you download an archive of your account. If the notice mentions social media, do not delete anything, and ask the legal team whether they want you to take additional archival steps.
This part makes people uncomfortable, and understandably so. Nobody wants to hand over a personal phone. Ignoring the obligation is not an option, but raising privacy concerns with the legal department usually is. They can often arrange a protocol where a forensic specialist images only the relevant data rather than cloning the whole device.
Physical Files
Paper documents, handwritten notes, printed reports, and physical objects covered by the order need the same care as electronic data. Gather what falls within scope and store it in a location the legal or records team designates. Don’t add sticky notes, highlights, tabs, or annotations. Don’t refile or reorganize. Freeze everything in its current condition.
If the relevant paper lives in a shared space where someone else might toss it or reorganize it, tell the legal team so they can arrange secure storage. If a document’s authenticity is later questioned, a clear chain of custody is what answers the question.
Records You Create Going Forward
A preservation order is not a one-time task. It is a continuing duty. Records you create after receiving the notice are covered too, as long as they fall within the order’s scope. If the hold covers a particular project and you send new emails about that project next month, those emails are part of the hold.
You may also be asked to help identify or collect preserved information — walking an attorney through your filing system, explaining the context behind certain messages, or confirming that everything in a date range has been kept. Cooperate. If you find additional relevant material you had not identified before, report it right away.
What Happens If You Don’t Comply
Courts treat preservation failures seriously, and the consequences scale with how bad the conduct was.
Civil Sanctions
Under Federal Rule of Civil Procedure 37(e), when electronically stored information is lost because a party failed to take reasonable steps to preserve it and the data cannot be recovered, the court can impose sanctions calibrated to fault. If the loss caused prejudice to the other side but was not intentional, the court can order measures to cure that prejudice, such as allowing additional discovery or barring certain arguments. If the court finds the party acted with the intent to deprive the other side of the evidence, the sanctions are much harsher: the court can instruct the jury to presume the lost information was unfavorable, dismiss the case outright, or enter a default judgment.1Cornell Law Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery
The rule does not demand perfection. Courts ask whether you took reasonable steps given the circumstances, and they weigh factors like how sophisticated the party is with litigation. But “I didn’t know” is a weak defense once you have a written preservation notice in hand.
Criminal Exposure
When a federal investigation or proceeding is involved, the stakes rise sharply. Under 18 U.S.C. § 1519, anyone who knowingly destroys, alters, or falsifies records with the intent to obstruct a federal investigation or proceeding faces up to 20 years in prison.2GovInfo. 18 USC 1519 – Destruction, Alteration, or Falsification of Records in Federal Investigations A separate statute, 18 U.S.C. § 1512, makes it a crime to corruptly destroy or conceal records with the intent to impair their availability for use in an official proceeding, with the same 20-year maximum.3Office of the Law Revision Counsel. 18 USC 1512 – Tampering With a Witness, Victim, or an Informant
These provisions reach individuals, not just companies. An employee who deliberately shreds documents or wipes a hard drive after receiving a preservation order tied to a federal matter is personally exposed to prosecution.
Your Job
Even when criminal charges are not on the table, an employee who violates a litigation hold can be fired, demoted, or otherwise disciplined. Because employers themselves can be sanctioned by courts for failing to make sure their people actually followed the hold, companies have strong incentive to treat non-compliance as a firing offense. If your employer suffers sanctions or an adverse judgment because records were lost on your watch, you are unlikely to walk away clean.
When the Hold Ends
A preservation order stays in effect until one of three things happens: the legal matter is fully resolved, the investigation concludes, or the authority that issued the order lifts it. You should get written confirmation before you change anything.
Do not resume normal deletion because you heard the case settled or because things have gone quiet for a while. Settlement does not automatically end a hold if post-settlement obligations exist, and a dormant investigation may still be active. Wait for the formal release from the legal department. Then, and only then, can you go back to your regular retention practices.