When opposing counsel sends a litigation hold notice, your firm has an immediate obligation: preserve all potentially relevant documents, emails, and electronic records. No deletions. No overwrites. No routine purges. That preservation obligation attaches the moment litigation is reasonably anticipated — and “we didn’t know how to set it up” is not a defense that protects you from sanctions.
Microsoft 365 has the tools to handle litigation holds correctly. Here’s how to use them.
What is a litigation hold and when is it required?
A litigation hold (also called a legal hold) is a directive to suspend the normal deletion and destruction of documents and electronic data that may be relevant to pending or anticipated litigation. Under Federal Rule of Civil Procedure 37(e) — and Florida’s equivalent — a party that fails to preserve electronically stored information (ESI) when it had a duty to do so can face sanctions ranging from adverse inference instructions to case-dispositive sanctions.
The hold obligation arises not just when a lawsuit is filed, but when litigation is “reasonably anticipated” — which can be as early as a client complaint, a threatening letter, or internal knowledge of a potential claim. For Miami law firms that handle litigation on behalf of clients, you may also need to advise clients on their own hold obligations as part of competent representation under Rule 4-1.1.
How to place a litigation hold in Microsoft Purview
In Microsoft 365, litigation holds are managed through the Microsoft Purview compliance portal at compliance.microsoft.com. Navigate to eDiscovery > Standard (or Premium for larger matters) > Cases. Create a new case for the matter, then add holds to the case.
Within the case, go to the Holds tab and create a new hold. You can target specific custodians (individual users), specify which data sources to hold (Exchange mailboxes, SharePoint sites, OneDrive accounts), and optionally apply a keyword query to limit the hold to relevant content. Once applied, the hold prevents any deletion or purging of content from those sources — even if the user deletes items, they remain preserved in a hidden recoverable items folder.
In-Place Hold vs. eDiscovery Hold — which to use?
Microsoft offers two main hold mechanisms. Mailbox litigation hold (enabled directly on a mailbox via PowerShell or the Exchange admin center) is a blunt instrument — it holds everything in the mailbox indefinitely, with no case management, no keyword filtering, and no audit trail within a case structure. It’s useful for simple, immediate preservation but lacks the management features of a proper eDiscovery case.
eDiscovery holds (via the Purview eDiscovery cases) are the better approach for any matter of significance. They attach to a case, can be scoped by custodian and keyword, produce a defensible audit trail, and integrate with the collection and review workflow when it comes time to produce documents. For litigation-focused law firms, building your hold process around eDiscovery cases is the more defensible practice.
How to search held content for production
Once a hold is in place and you need to respond to a discovery request, the Microsoft Purview Content Search tool lets you search across all held data sources using keywords, date ranges, sender/recipient filters, and file types. Search results can be exported in industry-standard formats (PST for email, original file formats for documents) or reviewed natively within Purview Review Sets in the eDiscovery Premium tier.
For most Miami law firms handling routine civil litigation, the Standard eDiscovery tier is sufficient. Complex multi-party litigation with large data volumes may warrant eDiscovery Premium, which includes AI-assisted relevance filtering and attorney-client privilege detection.
Common mistakes that expose firms to sanctions
- Placing the hold too late: The obligation arises when litigation is anticipated, not when the complaint is filed. If routine auto-deletion purged relevant data in the interval, that’s a problem.
- Not capturing all custodians: Holds that cover the named partner but miss the associate who handled the matter, or the shared mailbox that received relevant communications, create gaps in preservation.
- Letting the hold lapse: eDiscovery holds must remain active until the matter is resolved and the hold is affirmatively released. Accidental expiration or deletion of a case without releasing the hold properly can create preservation gaps.
- No documentation: Courts have increasingly required parties to produce metadata showing when holds were placed and how compliance was monitored. If you can’t show that, you have a problem.
Best practices for documenting hold procedures
Maintain a litigation hold log for each active matter: the date the hold was triggered, who authorized it, which custodians and data sources are covered, and the date the hold was eventually released. The Microsoft Purview audit log provides a machine-generated record of hold creation and modification events — export and retain this as part of your matter file. If you use a practice management system like Clio or MyCase, attach the hold documentation to the matter record there.
Need help configuring litigation holds or e-discovery in your Microsoft 365 tenant? We handle this for Miami law firms — including initial setup, training your staff on the process, and advising on best practices for documentation. Contact SKALS IT to get started.