A demand letter or a threat to sue can leave a Florida business owner wondering what to keep and what to delete. A litigation hold letter answers that question in writing.
It is a notice that tells people to preserve documents and electronic data tied to a dispute. This guide explains when a business should send one, what it must cover, and the mistakes that cause trouble.
What a Litigation Hold Letter Is
A litigation hold letter is a written instruction to keep records that may matter to a dispute. Lawyers also call it a hold notice or a preservation notice.
The letter tells each recipient to stop routine deletion. It also tells them to keep material in its current form, including metadata. Metadata is the hidden data about a file, such as when it was created or last edited.
It can go to staff inside your company or to the other side of a dispute. Emails, texts, spreadsheets and photos all count.
A hold letter does not prove a claim, and it does not create a defense. It is an instruction. Its key words are “preserve all,” paired with a clear scope that names the subjects, people and dates involved. Think of the scope as a fence around relevant material. The fence needs clear edges, or people will guess where it stops.
Not sure what your next step is?
Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
When a Florida Business Should Send One
The business that expects to sue and the business that expects to be sued both face this decision.
Here is how it looks across the practice areas Ayala Law PA focuses on. In a contract breach dispute, the deal emails and performance reports matter. In a shareholder or partnership disagreement, meeting minutes and financial records matter. In a construction payment or lien dispute, daily logs, change orders and payment applications matter. In a real estate conflict, leases and inspection reports matter. In an international trade dispute, shipping and customs records matter.
Waiting can cost you. Auto-delete settings, phone upgrades and routine clean-ups can remove data before anyone writes a hold.
If you receive a demand letter, your response matters too. Under § 57.105, a sanctions motion cannot be filed if the challenged claim is withdrawn or corrected within 21 days after the motion is served.
What the Hold Must Cover
A hold should reach every place where relevant records live, including personal phones used for work. Start with the people who hold the information, then list where they keep it.
Common sources include:
- Email and calendar entries
- Text and messaging apps
- Voicemail and call logs
- Cloud storage and shared drives
- Accounting, invoicing and project-management systems
- Photos, videos and paper files
Devices and accounts count too. That covers company laptops, backups, business social media accounts and phones staff use for work. Name each custodian, meaning each employee who holds relevant information.
Florida entity law also shows what records a business should already keep. A limited liability company must keep a current list of members and managers and a copy of its operating agreement, under § 605.0410. A corporation must keep its minutes, its written communications to shareholders from the past 3 years, and its annual financial statements for the last 3 fiscal years, under § 607.1601. A partnership must give partners access to its books and records, under § 620.8403.
Use those lists as a starting checklist. Then set a date range and subject matter so the hold is specific enough to follow.
What to Include in the Letter
A good hold letter names the dispute neutrally, lists what to keep and says what to do. Keep it plain enough that a warehouse manager can follow it.
Describe the dispute without admitting liability or arguing the merits. Say that a contract dispute has been raised, not who caused it.
List the categories of material, the date range and the people or departments involved. Each category should name a subject, such as communications about the project’s scope from the start of the job forward.
Give clear instructions. Recipients should turn off auto-delete, stop mailbox purges and avoid device wipes. They should not alter, rename or move files.
Keep the letter short and factual. A long letter full of legal argument invites a fight over every line.
Require a written acknowledgment from each recipient, and name one person to answer questions. Tell IT and records staff exactly what to do. Send the hold to any new employee who joins the matter, and keep it in place until the matter ends.
How a Hold Affects Discovery and Evidence
A hold is the internal rule that relevant material must be kept. Discovery is the process where the other side asks for it. Those requests can reach electronically stored information (ESI), meaning data kept on computers, phones and servers.
Losing or destroying relevant records after the duty to keep them arises is called spoliation of evidence.
A written, followed hold does not prove a claim or create a defense. It does show the business took steps to keep records. That matters if a later question arises about what was kept.
Privilege has limits. Under § 90.502, a client may refuse to disclose confidential communications made to get legal services. That protection does not apply where the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.
Records access also matters.
Common Mistakes to Avoid
The most common mistakes leave gaps in what gets kept.
- Sending a vague notice with no categories, custodians or time periods.
- Relying on staff to remember, instead of written instructions and tracked acknowledgments.
- Overlooking personal phones, messaging apps and personal email used for company work.
- Letting automatic deletion keep running after the duty to preserve arises.
- Releasing the hold early, before the matter has actually ended.
Treat a demand letter as a signal to act, not routine mail. Fix these gaps early. A hold that is written, specific and tracked is easier to explain later.
Not sure what your next step is?
Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
Talk Through Your Dispute With Ayala Law PA
If you’ve received a demand letter or expect a dispute, Ayala Law PA can help you think through whether to send a hold and how to answer the claim.
Eduardo A. Maura is the lawyer responsible for this page. Ayala Law PA focuses on business litigation, commercial litigation, contract disputes, shareholder disputes, construction litigation, real estate litigation and international trade litigation.
The firm’s only bona fide office is at 1646 W Snow Ave, Tampa, Florida. The firm represents businesses in Tampa, Hillsborough County and the Tampa Bay area.
For related reading, see the business litigation overview and the guide to LLC books and records demands in Florida.
To talk through your situation, call (305) 570-2208 or use the contact form.
