A legal hold is required whenever an organization has a duty to preserve documents and electronically stored information ("ESI"). The duty is created whenever an audit, investigation or lawsuit is initiated against an organization. An organization may also have a duty to preserve documents and ESI in situations where the organization learns of the threat of an audit, investigation or lawsuit. Events that give rise to the duty to preserve documents and ESI (and the need to implement a legal hold) are commonly called a "trigger event".
"[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' [also known as a legal hold] to ensure the preservation of relevant documents." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)). "It is . . . well settled that a party has a duty to preserve evidence when the party is placed on notice that the evidence is relevant to the litigation or when the party should have known that the evidence may be relevant to future litigation." Eckhardt v. Bank of America, N.A., 2008 U.S. Dist. LEXIS 36951, 2008 WL 1995310, at *5 (W.D.N.C. May 6, 2008). The duty to preserve evidence, "arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Zubulake, 220 F.R.D. 212, 216 (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). Further, the duty to preserve information is independent of whether an opposing party requested a litigation hold. See id.; see also Kemper Mortgage Inc. v. Russell, 2006 U.S. Dist. LEXIS 20729, at *3 (S.D. Ohio Apr. 18, 2006) ("While that obligation may be enforced by court order or by a later sanction for spoliation, obviously the duty arises independent of any court declaration of the duty and indeed long before a court is available to make a declaration in the particular case.")