How to Preserve Evidence and Avoid Spoliation Sanctions
How to issue and enforce a litigation hold, what counts as spoliation, and the sanctions courts impose when evidence is lost or destroyed.
Spoliation is the loss, destruction, or alteration of evidence that a party had a duty to preserve. The duty to preserve typically arises earlier than most people expect: not when a lawsuit is filed, but when litigation is reasonably anticipated. A party that keeps deleting emails or overwriting backups after that point, even through an ordinary auto-delete policy, can face serious sanctions regardless of whether the destruction was intentional.
Avoiding spoliation is less about any single dramatic act of destruction and more about building a defensible, documented preservation process the moment a dispute becomes foreseeable. Courts evaluate not just what was lost, but what steps were taken to prevent the loss, which makes the litigation hold process itself part of the evidence.
Know when the preservation duty starts
The duty to preserve evidence generally attaches when a party reasonably anticipates litigation, which can be well before a complaint is filed. A demand letter, an internal incident report describing a serious injury, a regulatory inquiry, or even an internal email acknowledging a likely lawsuit can all trigger the duty. Waiting until a complaint is served is often too late.
Issue a written litigation hold immediately
A litigation hold is a formal instruction to custodians of relevant information to stop routine deletion and preserve materials that may be relevant to the anticipated dispute.
- Identify the scope of the anticipated claims and the custodians and systems likely to hold relevant information.
- Send a clear, written hold notice describing what must be preserved, not a vague instruction to "keep everything."
- Suspend any automatic deletion policies, auto-purge settings, or routine document destruction schedules that would affect covered materials.
- Follow up periodically, and re-issue or update the hold as the scope of the dispute becomes clearer.
- Keep a record that the hold was issued, to whom, and when — the hold notice itself often becomes evidence in a later spoliation dispute.
Extend the hold to electronic and third-party sources
Modern spoliation disputes are frequently about electronically stored information rather than paper files, and preservation obligations reach further than an email inbox.
- Email, messaging platforms, and collaboration tools, including personal devices used for work if relevant.
- Backup systems and cloud storage, which may need to be preserved even if not part of daily active use.
- Metadata, which can itself be relevant and is easy to inadvertently alter by opening or moving files improperly.
- Information held by third parties under the party's control, such as a vendor or contractor holding relevant records.
Understand what sanctions courts can impose
Sanctions generally scale with two factors: how culpable the loss was, and how prejudicial it was to the other side. A negligent loss of marginally relevant evidence is treated very differently from an intentional destruction of central evidence.
- An adverse inference instruction, telling the jury it may assume the lost evidence would have been unfavorable to the party that lost it.
- Monetary sanctions, including the cost of additional discovery made necessary by the loss.
- Exclusion of evidence or witnesses connected to the spoliation.
- In the most severe cases involving intentional destruction, dismissal of claims or defenses, or a default judgment.
Document the preservation effort, not just the result
If evidence is later found to be missing despite good-faith efforts, a documented, defensible preservation process is the strongest defense against sanctions. Keep records of when the hold was issued, what systems were included, and what steps were taken to suspend routine deletion, so that any later gap can be explained as an honest limitation rather than a failure to act.
- Does a company have to preserve evidence before a lawsuit is filed?
- Yes, once litigation is reasonably anticipated, which can occur well before a complaint is filed, such as after a serious incident, a demand letter, or a threat to sue. The duty does not wait for formal service of a complaint.
- Is accidental deletion still sanctionable spoliation?
- It can be, though courts generally impose harsher sanctions for intentional or reckless destruction than for good-faith negligence, and the availability of certain severe sanctions may depend on a showing of intent to deprive the other side of the evidence.
- What is the difference between a litigation hold and normal document retention policy?
- A normal retention policy governs routine business recordkeeping and deletion in the ordinary course. A litigation hold is a targeted suspension of that routine process for specific evidence once litigation is reasonably anticipated, and it overrides the normal policy for covered materials.
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