Summary. Rule 37(e) rewrote the law of electronic evidence destruction in 2015, and a great deal of pre-2015 authority that lawyers still cite is no longer good law. The rule now forecloses the harshest sanctions unless the court finds that a party acted with the intent to deprive another party of the information, a standard far more demanding than the negligence or gross negligence tests several circuits had used. This article explains when the duty to preserve attaches and what it covers, how to issue and enforce a litigation hold that actually works, and how courts apply the two tiers of Rule 37(e): curative measures for prejudice under (e)(1) and the severe sanctions of adverse inference, dismissal, and default under (e)(2). It addresses the modern preservation problems that generate most disputes, including ephemeral messaging, collaboration platforms, personal devices, cloud accounts, and auto-deletion policies, and it explains the limits of a court's inherent authority after Goodyear v. Haeger. It closes with a hold template outline, a preservation checklist, a worked example, an FAQ, and related reading.

The most expensive mistake in modern litigation is usually made by someone who is not a lawyer, on a day when nobody thinks a lawsuit is coming, and it takes about four seconds.

Someone turns on a 30-day auto-delete policy in a messaging platform. Someone reimages a laptop for a departing employee. Someone tells a team, helpfully, to "clean up the shared drive." Six months later, in a case worth $12 million, opposing counsel asks why there are no messages from the relevant period, and the answer determines the outcome.

Spoliation cases are rarely about villains. They are about ordinary information governance colliding with a legal duty that attached before anyone realized it.

The short answer

The duty to preserve attaches when litigation is reasonably anticipated, which is often before a complaint is filed and sometimes before a demand letter arrives.

What must be preserved is relevant, non-privileged information within the party's possession, custody, or control, including electronically stored information, subject to proportionality.

Rule 37(e) governs sanctions for lost ESI. It applies only if:

  • the ESI should have been preserved in the anticipation or conduct of litigation;
  • it is lost because a party failed to take reasonable steps to preserve it; and
  • it cannot be restored or replaced through additional discovery.

If those conditions are met, the court has two tiers:

  • Rule 37(e)(1): upon finding prejudice to another party, the court "may order measures no greater than necessary to cure the prejudice."
  • Rule 37(e)(2): only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, the court may (A) presume the lost information was unfavorable, (B) instruct the jury that it may or must presume the information was unfavorable, or (C) dismiss the action or enter a default judgment.

The headline: negligence, even gross negligence, no longer supports an adverse inference instruction for lost ESI. Intent is required.

Part I: When the duty attaches

The trigger

The standard formulation is that the duty to preserve arises when a party "reasonably anticipates litigation." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) ("Zubulake IV"). It does not require a filed complaint, a demand letter, or certainty.

Events that commonly trigger it:

  • Receipt of a demand or cease-and-desist letter.
  • A litigation hold letter from an adversary.
  • An internal complaint that plausibly foreshadows a claim (harassment, whistleblower, safety).
  • A serious accident or product failure.
  • An employee's departure to a competitor with suspicious file activity.
  • A government inquiry, subpoena, or civil investigative demand.
  • The company's own decision to sue.
  • A material breach notice under a contract.

Events that generally do not trigger it: routine customer complaints, ordinary commercial disagreements, and speculative concerns about "someone might sue someday."

A note on plaintiffs. The duty applies to the party contemplating suit at least as strongly as to the defendant, and it attaches earlier: when you decide to sue, you have anticipated litigation. Plaintiff-side spoliation is common and is punished.

Scope: what must be preserved

Relevant information in the party's possession, custody, or control. The last phrase is where fights start:

  • Employee personal devices are within control where the employer has a BYOD policy with a right of access, or where the employee used the device for work with the employer's knowledge. Courts differ, and the policy language matters enormously.
  • Third-party cloud services are within control where the party has a contractual right to obtain the data. Most SaaS agreements provide one.
  • Departed employees' data must be preserved before the offboarding process destroys it. Reimaging laptops on a 30-day cycle is the single most common cause of avoidable spoliation.
  • Backup tapes are generally not required to be preserved where they are maintained solely for disaster recovery and are inaccessible, provided accessible copies of the same data exist. Zubulake IV said so, and Rule 26(b)(2)(B) reinforces it.

Proportionality applies. Rule 26(b)(1)'s proportionality factors inform preservation as well as production. A small business need not implement enterprise-grade preservation, and the 2015 advisory committee note expressly instructs courts to be "sensitive to the party's sophistication with regard to litigation."

Part II: The litigation hold

Issuing it

A litigation hold is a written instruction to identified custodians to preserve potentially relevant information. It should be issued promptly after the duty attaches, and it should be documented.

Elements of a hold notice that works:

  1. Plain-language description of the matter, enough for custodians to recognize relevant material without disclosing privileged strategy.
  2. Date range and subject matter scope.
  3. Categories of information, described in operational terms: email, chat (name the platforms), text messages, voicemail, documents, spreadsheets, notes, calendars, ticketing systems, code repositories, design files, drawings, databases, photographs, and physical items.
  4. Locations, including company systems, personal devices used for work, home offices, cloud accounts, and personal email if used for business.
  5. Affirmative instructions: stop deleting, disable auto-delete for affected accounts, do not edit or reorganize, do not use ephemeral modes.
  6. A specific point of contact for questions.
  7. An acknowledgment requirement with a deadline.
  8. A statement that the hold remains in effect until released in writing.

Enforcing it

Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V"), remains the best statement of counsel's ongoing obligations. Judge Scheindlin held that counsel must:

  • Issue a litigation hold at the outset and reissue it periodically.
  • Communicate directly with key players rather than relying on a mass email.
  • Instruct all employees to produce electronic copies of their relevant active files.
  • Ensure that backup media containing unique relevant documents are preserved and segregated.

The practical translation for in-house teams:

  • Interview custodians. A hold notice tells you what you told people. A custodian interview tells you what actually exists, where it lives, and what habits could destroy it. This is the single highest-value preservation activity and it is routinely skipped.
  • Involve IT immediately. Legal cannot suspend an auto-delete policy; IT can. Document the ticket.
  • Track acknowledgments and follow up on non-responders.
  • Reissue quarterly and whenever the scope changes or new custodians are identified.
  • Release in writing when the matter ends, so that ordinary retention resumes and the company does not accumulate indefinite holds.

Is the hold notice privileged? Generally yes as to its content, though courts have ordered production of the fact, timing, and distribution of holds where spoliation is at issue, and some have ordered production of the notice itself where a prima facie showing of spoliation exists. Assume the timing and recipient list will be discoverable and act accordingly.

Part III: Rule 37(e) in operation

The threshold conditions

Rule 37(e) applies only if all of the following are true. Each is a defense.

1. The ESI "should have been preserved in the anticipation or conduct of litigation." If the duty had not attached when the data was lost, the rule does not apply. Timeline evidence wins these arguments.

2. It "is lost." Not merely hard to find. If it exists somewhere, it is not lost.

3. The loss occurred "because a party failed to take reasonable steps to preserve it." Reasonableness, not perfection. Data lost to a genuine system failure, a natural disaster, or a third party's action despite reasonable steps is outside the rule.

4. It "cannot be restored or replaced through additional discovery." This is the most underused defense. If the emails exist in the recipient's mailbox, on a backup, in a counterparty's files, or in a system export, they are replaceable. Courts routinely deny sanctions motions on this ground, and the responding party should invest in showing replaceability before conceding loss.

Tier one: curative measures under (e)(1)

If the conditions are met and the court finds prejudice, it "may order measures no greater than necessary to cure the prejudice."

Available measures include:

  • Permitting evidence and argument about the loss to the jury (without an instruction that the evidence was unfavorable).
  • Precluding the spoliating party from offering evidence on the affected topic.
  • Allowing additional discovery at the spoliating party's expense.
  • Awarding fees and costs of the motion and of remedial discovery.
  • Excluding specific testimony that the lost evidence would have tested.

Who bears the burden on prejudice? The rule deliberately does not say. The advisory committee note explains that the court has discretion to place the burden, recognizing that requiring proof about the content of lost information can be unfair. In practice, courts often require the movant to show the lost material was likely relevant and helpful, but they discount that burden where the loss itself makes proof impossible.

Tier two: severe sanctions under (e)(2)

The court may impose the three severe measures only on a finding of intent to deprive another party of the information's use in the litigation.

What this changed. Before 2015, the Second Circuit permitted an adverse inference on a showing of negligence (Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002)), and Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), treated gross negligence as supporting a presumption. The 2015 amendment expressly rejected that approach. Those cases remain historically important and are no longer good law on the mental state required for an adverse inference as to ESI.

What "intent to deprive" means. More than knowledge that data is being deleted. It requires a purpose to keep the information from the other side. Courts infer it from:

  • Deletion after a hold notice or a preservation demand.
  • Use of wiping software, secure-delete utilities, or factory resets.
  • Deletion of selected items while similar items are kept.
  • Timing that tracks litigation events.
  • False statements about what existed or what was done.
  • Loss of a device that the party had been ordered to produce.

What does not show it: an auto-delete policy that nobody remembered to suspend, an IT refresh cycle, an employee cleaning a mailbox as a matter of habit. Those support (e)(1) relief, not (e)(2).

A finding, not a presumption. Rule 37(e)(2) requires the court to make the intent finding. Where the sanction is a jury instruction, most courts make a preliminary finding themselves and then permit the jury to decide whether to draw the inference.

The relationship to inherent authority

Can a court bypass Rule 37(e) and impose severe sanctions under its inherent power?

The advisory committee note says the rule "forecloses reliance on inherent authority or state law to determine when certain measures should be used" for lost ESI. Most courts have honored that. A minority have used inherent authority for conduct beyond mere loss (fabrication, perjury, discovery abuse generally).

Two Supreme Court cases frame the outer limits:

  • Chambers v. NASCO, Inc., 501 U.S. 32 (1991), confirms that federal courts possess inherent power to sanction bad-faith conduct, including conduct not covered by rule or statute.
  • Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017), holds that a compensatory sanction under inherent authority must be limited to the fees the innocent party incurred solely because of the misconduct, applying a but-for causation test. Anything beyond that is punitive and requires criminal-type procedural protections.

Goodyear is essential for any party facing a large fee award: demand a but-for causal analysis, item by item.

Non-ESI spoliation

Rule 37(e) governs only ESI. Destruction of physical evidence remains governed by circuit common law and inherent authority, where negligence-based adverse inferences may still be available. Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001), is the leading case: dismissal was affirmed where the plaintiff failed to preserve the vehicle in a crashworthiness case, depriving GM of the ability to examine the only material evidence.

Practical consequence: a party that destroys a physical product may face a harsher standard than one that deletes emails about it.

Sanctions for discovery abuse generally

Rule 37 has other teeth beyond (e). Rule 37(b) authorizes sanctions for violating a discovery order, up to dismissal or default. Klipsch Group, Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620 (2d Cir. 2018), affirmed a $2.7 million sanction, a permissive adverse inference, and an asset restraint against a defendant that repeatedly failed to preserve and produce, in a case where the plaintiff's underlying damages were far smaller. The Second Circuit rejected the argument that sanctions must be proportionate to the value of the case, holding that the proper measure is the cost the misconduct imposed.

Part IV: The modern preservation problems

The rules were written for email. Most of the disputes now involve everything else.

Collaboration platforms

Slack, Microsoft Teams, and their equivalents hold enormous quantities of substantive communication, often more candid than email. Preservation issues:

  • Retention settings are per-workspace, per-channel, and sometimes per-user, and default settings often delete messages after a fixed period.
  • Direct messages are frequently the most relevant content and the least governed.
  • Edits and deletions by users may not be recoverable depending on plan tier.
  • Export capability depends on the license tier. A company on a lower tier may be unable to export DMs at all, which is a problem to discover before litigation, not during.
  • Huddles, calls, and screen shares may generate transcripts or may not.

Action item: know your platform's retention configuration and export capability today. If you cannot export DMs, that is an information governance decision with litigation consequences, and it should be made deliberately by someone with authority.

Ephemeral and encrypted messaging

Signal, WhatsApp disappearing messages, Telegram secret chats, and similar tools are now common in business, and courts have grown notably impatient with their use after litigation is anticipated.

The pattern that draws sanctions: employees move sensitive conversations to a disappearing-message app after a dispute arises. That fact pattern looks like intent to deprive, and courts have treated it that way in several high-profile matters, including antitrust and trade secret cases.

Policy guidance:

  • Decide, in advance, whether ephemeral messaging is permitted for business use at all.
  • If permitted, require disabling of auto-delete upon a litigation hold and be able to prove the instruction was given and followed.
  • Never let a hold notice omit the ephemeral platforms your people actually use.

Text messages and personal devices

Text messages are frequently outcome-determinative and frequently unpreserved.

  • Control depends on policy and practice. A BYOD policy that reserves a right of access supports control; a policy that disclaims any right complicates it.
  • Collection is intrusive, and courts balance privacy against relevance. Targeted collection (specific date ranges, specific contacts, specific keywords) is more likely to be ordered than full imaging.
  • iCloud and Google backups may contain messages the device no longer holds.
  • Device replacement is the classic loss event. Build a preservation step into the device-refresh process.

Auto-deletion and information governance

Ordinary retention policies are lawful and desirable. Rule 37(e)'s advisory committee note expressly recognizes the "routine, good-faith operation of an electronic information system." But a routine policy stops being a defense the moment the duty to preserve attaches and the policy is not suspended.

The operational fix is a hold-aware retention architecture: an ability to place specific custodians and repositories on hold that overrides retention, with an audit trail. Most enterprise platforms support this. Configure it before you need it.

Departed employees

The most common avoidable loss. Build the sequence into offboarding:

  1. Check whether the employee is subject to any active hold.
  2. Preserve the mailbox (place on litigation hold, do not delete the account).
  3. Image or preserve the device before reissue.
  4. Preserve home directories, cloud folders, and any repository access.
  5. Document what was done and when.

Cloud, SaaS, and third parties

Data held by a vendor is usually within your control if the contract gives you a right to it. Two practical steps:

  • Contract for it. Include preservation cooperation, export capability, and post-termination data return in vendor agreements. See Indemnification and Limitation of Liability.
  • Notify vendors of holds where their systems contain relevant data.

AI systems and generated content

An emerging problem worth flagging. Where employees use AI assistants for work, the prompts and outputs may be relevant, discoverable, and subject to preservation. Retention of chat histories varies by product and configuration, and enterprise deployments often allow administrators to set retention. Include AI tools in custodian interviews, and know whether your deployment retains conversation history. See AI Governance and Compliance.

Part V: Litigating a spoliation motion

Bringing one

  1. Establish the timeline. When did the duty attach, and what happened after? Build an exhibit.
  2. Prove the loss. Metadata gaps, missing message IDs, one-sided email threads, gaps in sequential file numbering, and forensic artifacts of deletion tools.
  3. Prove the failure to take reasonable steps. Take discovery on the hold itself: when it issued, to whom, what it said (or at least the fact and timing), whether auto-delete was suspended, whether custodians were interviewed. A Rule 30(b)(6) deposition on preservation is the standard vehicle.
  4. Address replaceability. Show you tried third-party sources and they do not have it.
  5. Prove prejudice. Explain what the missing material would likely have shown, using surviving evidence of its existence (a reply to a missing email, a calendar entry for a missing meeting).
  6. Decide whether to seek (e)(2) relief. Only pursue it if you can prove intent. Overreaching on intent damages an otherwise strong (e)(1) motion.
  7. Ask for a specific remedy. Courts grant tailored relief far more readily than open-ended requests.

Defending one

  1. Attack the trigger date. Litigation was not reasonably anticipated when the data was lost.
  2. Show reasonable steps. Produce the hold, the acknowledgments, the IT tickets, the custodian interview log. This is why documentation matters.
  3. Show replaceability. Produce the same content from other custodians, backups, or counterparties. This is often the fastest and most complete defense.
  4. Attack prejudice. Show the surviving record covers the same ground.
  5. Attack intent hard. Emphasize the routine, systemic nature of the loss, and the absence of selectivity.
  6. Invoke proportionality and sophistication. The advisory committee note supports leniency for less sophisticated parties.
  7. Cite Goodyear on any fee request, and demand a but-for causal accounting.

The Rule 30(b)(6) preservation deposition

This has become standard practice. Topics typically include: the date the duty attached and how it was determined; the identity and timing of holds; custodian identification methodology; systems inventory; retention and auto-delete settings and whether they were suspended; collection methodology; and losses identified.

Prepare the witness carefully. This deposition creates the record on which sanctions are decided, and an unprepared witness can convert a defensible position into an indefensible one. See Deposition Practice Toolkit.

Part IV-A: Preservation across borders and the privacy collision

Two forces now pull in opposite directions, and companies operating internationally have to manage both.

Privacy law says delete. Data minimization and storage limitation obligations under the state privacy statutes and the European General Data Protection Regulation require that personal data not be kept longer than necessary for the disclosed purposes. Regulators have made retention an enforcement priority. See Data Minimization and Avoiding the Over-Retention of Personal Information.

Litigation law says keep. The moment litigation is reasonably anticipated, the duty to preserve overrides the retention schedule for the affected material.

These are reconcilable, but only with design. The architecture that works:

  • A retention schedule that deletes by default on defined timelines.
  • A hold capability that overrides deletion for specified custodians and repositories, with an audit trail.
  • Scoped holds. Do not place the entire company on indefinite hold to avoid thinking; over-preservation is itself a privacy violation and a discovery cost multiplier.
  • Documented legal basis for continued retention of personal data under hold, which most privacy frameworks accommodate as necessary for the establishment, exercise, or defense of legal claims.
  • Release discipline, so that holds actually end and ordinary deletion resumes.

Blocking statutes and data transfer. Preserving is one problem; producing is another. Several jurisdictions restrict the transfer of data abroad for foreign litigation. France's blocking statute is the best-known, China's Data Security Law and Personal Information Protection Law require government approval before providing data to a foreign judicial authority, and the GDPR's Chapter V constrains transfers to the United States. The Supreme Court's decision in Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522 (1987), held that the Hague Evidence Convention is not the exclusive means of obtaining evidence abroad and directed courts to apply comity factors, which most courts do while still ordering production.

The practical sequence for a case with foreign data: preserve immediately and broadly enough, then negotiate the production scope with the other side and the court before transferring anything, then use the comity analysis and, where appropriate, a Hague request as the record of good faith. Companies that produce first and think about the blocking statute afterward create regulatory exposure in one jurisdiction to solve a discovery problem in another. See International Data Transfers After Schrems II and Cross-Border IP Litigation and Service Toolkit.

A worked example

Ravenwood Logistics, Inc. (fictional) is sued by a customer, Tanner Foods (fictional), over spoiled cargo. Tanner sends a demand letter on 6 January alleging a refrigeration failure. Ravenwood's operations team discusses the shipment extensively on Slack. Ravenwood's Slack workspace deletes messages after 90 days on a plan tier that does not permit DM export. Ravenwood's counsel issues a hold on 3 April, after the complaint is filed.

What Tanner will show. The duty attached on 6 January, when the demand letter arrived. Ravenwood took no preservation steps for 87 days. The 90-day auto-delete ran continuously. The channel messages from the shipment window are gone. Tanner has one surviving screenshot, forwarded by a Ravenwood employee to a Tanner employee, showing a message from the dispatcher reading "the reefer unit on 4417 has been throwing codes for a week, we sent it anyway."

Rule 37(e) analysis:

  • Should have been preserved? Yes, from 6 January.
  • Lost? Yes, as to Slack.
  • Reasonable steps? No. No hold for 87 days, and no suspension of auto-delete.
  • Replaceable? Partially. Some content may exist in email, in the dispatch system, in the driver's texts, and in the telematics logs from the refrigeration unit. Ravenwood should invest heavily here, because every replaced item reduces prejudice.
  • Prejudice? Substantial. The surviving screenshot proves that highly relevant messages existed.
  • Intent to deprive? Probably not. This looks like a company that did not have a hold process, not a company that deleted to hide. Ravenwood should press that hard, because it is the difference between an evidentiary hearing and a case-ending instruction.

Likely outcome. Rule 37(e)(1) relief: Tanner may present evidence and argument about the loss; Ravenwood is precluded from arguing that no one knew about the refrigeration problem; Ravenwood pays the fees for the motion and for additional discovery into the telematics and dispatch systems. No adverse inference instruction, because intent is not established.

Cost of the four seconds nobody spent. Roughly $200,000 in fees and remedial discovery, an evidentiary preclusion on the central issue, and a settlement value increase that dwarfs both.

The fix, in advance. A hold process triggered by demand letters, an IT runbook for suspending auto-delete, a Slack plan tier that supports export, and a quarterly test of the whole thing. Total cost: far less than the number above.

A litigation hold checklist

Trigger and scope

  • Document the date and basis on which litigation became reasonably anticipated.
  • Define the subject matter and date range.
  • Identify custodians (start broad, narrow with interviews).
  • Inventory systems: email, chat, file shares, cloud, ticketing, code, CRM, ERP, phones, voicemail, physical files, AI assistants.

Issuance

  • Draft and issue the hold notice in writing.
  • Require acknowledgment with a deadline; track non-responders.
  • Interview key custodians individually; record what exists and where.
  • Escalate to IT with specific instructions and open a ticket.

Technical execution

  • Suspend auto-delete and retention purges for affected accounts and repositories.
  • Place mailboxes on hold; do not delete departed employees' accounts.
  • Preserve devices before reimaging or reissue.
  • Disable ephemeral or disappearing-message features for affected custodians.
  • Notify relevant vendors and cloud providers.
  • Verify that the holds actually took effect (test it, do not assume).

Maintenance

  • Reissue the hold at defined intervals.
  • Update for new custodians, new systems, and scope changes.
  • Maintain a written log of every step, with dates.
  • Release in writing when the matter concludes.

Readiness (before any dispute)

  • Written retention schedule with hold override capability.
  • Data map identifying where each category of information lives.
  • Policy on personal devices and messaging apps, with an enforceable right of access.
  • Confirmed export capability on every communication platform in use.
  • Offboarding checklist with a preservation step.
  • A named owner for legal holds.

Frequently asked questions

When exactly does the duty to preserve start? When litigation is reasonably anticipated. That is a facts-and-circumstances question, and the safest practice is to treat any credible demand letter, internal complaint, serious incident, or government inquiry as a trigger and document the analysis.

Do I have to keep everything forever? No. Preservation is bounded by relevance and proportionality, and ordinary retention policies are lawful. The duty applies to potentially relevant information, and it ends when the matter ends and the hold is released.

Can I be sanctioned for deleting emails before I knew about the lawsuit? Not under Rule 37(e), because the ESI was not required to be preserved at the time. This is why establishing the trigger date is the first and most important defense.

What if the data is gone but the other side can get it elsewhere? Then it is not "lost" within the meaning of Rule 37(e), because it can be restored or replaced through additional discovery. Invest in demonstrating replaceability; it is often the cheapest complete defense.

Is an adverse inference instruction automatic if evidence is missing? No. For ESI, it requires a finding of intent to deprive. Negligence, even gross negligence, is not enough after the 2015 amendment. Older cases saying otherwise, including Residential Funding and Pension Committee, no longer state the governing standard on that point.

Does Rule 37(e) apply to paper documents or physical objects? No. Rule 37(e) is limited to ESI. Loss of physical evidence is governed by circuit common law and inherent authority, where negligence-based inferences may still be available. Silvestri.

Is my litigation hold notice privileged? Its content is generally privileged, but the fact, timing, and distribution are often discoverable, and courts sometimes order production of the notice where spoliation is at issue. Write it as though it may be read by the court.

What about employees' personal phones? It depends on control, which depends on your policy and your practice. If work happens on personal devices, address it in policy now, with an access right and a preservation obligation, or expect an expensive fight later.

How do I handle Slack and Teams? Know your retention settings and your export capability before a dispute. Suspend retention on hold. Include DMs in the hold notice. If your license tier cannot export DMs, escalate that as a business risk.

Can the other side get sanctions and fees? Yes, under Rule 37(e)(1) as a curative measure and under Rule 37(b) for order violations. Fee awards under inherent authority must be limited to fees caused by the misconduct under a but-for test. Goodyear v. Haeger.

Closing thought

Preservation is the rare litigation problem that is almost entirely solvable in advance and almost never solvable afterward.

The companies that handle it well do three unglamorous things. They know where their data lives, because someone built a data map. They can suspend deletion quickly, because someone configured hold capability and tested it. And they treat the trigger as a business process rather than a legal judgment call, so that a demand letter routes to the same place every time and generates the same steps.

The companies that handle it badly are not reckless. They are busy. They discover, in month nine of a case, that the messaging platform they adopted in a hurry deletes direct messages after ninety days and cannot export them at all, and that nobody told IT to change anything until counsel was retained.

Rule 37(e) is more forgiving than the law it replaced, and that is a good thing. But it is not forgiving enough to rescue a party that cannot describe, in writing, with dates, what it did to preserve evidence and when. That document is the whole defense. Write it as you go.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Preservation obligations depend on the facts, the jurisdiction, and the systems involved. Consult qualified litigation counsel as soon as litigation is reasonably anticipated.