Preserving Electronic Evidence Before Litigation Begins

Many organizations assume their obligation to keep evidence begins when they are served with a lawsuit. In practice, the duty to preserve generally arises when litigation is reasonably anticipated. A demand letter, a threatened claim, a regulatory inquiry or a serious internal incident can each be enough.

Why timing matters

Electronic data is fragile. Email retention settings purge messages automatically, collaboration tools overwrite edits, phones are replaced and accounts are closed when employees leave. If those routine processes continue after the duty attaches, relevant information can be lost through inaction alone.

Consequences of getting it wrong

Under Federal Rule of Civil Procedure 37(e), when electronically stored information that should have been preserved is lost because a party failed to take reasonable steps, and it cannot be restored or replaced, a court may order measures to cure the prejudice. Where a party acted with intent to deprive the other side of the information, the court may presume the information was unfavorable, instruct the jury accordingly, or even dismiss the action or enter a default judgment.

Elements of a reasonable preservation effort

First, identify the key custodians: the people most likely to have relevant information. Second, identify the data sources: email, file shares, cloud storage, chat platforms, phones and any industry-specific systems. Third, issue a written litigation hold that explains what must be kept and why, and obtain acknowledgments. Fourth, suspend automatic deletion for the affected accounts and systems. Finally, document every step, so you can later demonstrate that your efforts were reasonable.

Don't forget mobile and chat data

Text messages, WhatsApp, Slack and Teams conversations are frequently overlooked. If business was conducted on those channels, they belong in the preservation plan, including on personal devices where appropriate and lawful.

Practical takeaway

Preservation is far cheaper than recovery and far safer than explaining a loss to a judge. When a dispute appears on the horizon, involve counsel early and put a documented hold in place.