Also known as: preservation obligations · duty to preserve · preserve evidence · evidence preservation
Written by attorneys · grounded in primary & secondary sources — see below
A duty requiring a party to retain and protect relevant evidence from destruction or alteration once litigation is reasonably anticipated or has commenced. The obligation arises from common law, statutes, regulations, or court order and requires suspension of routine document destruction policies in favor of a litigation hold.
Highway patrol officers arrested Luis at a rest area and towed his rig to a secured lot without searching the cab. Detectives conducted a thorough search of the cab the next day. Luis moved to suppress the seized documents. Officers were required to maintain the integrity of any potential evidence in the vehicle.
Laura Zubulake sued her former employer for gender discrimination and retaliation. After receiving notice of the claims, the employer continued its routine practice of deleting employee emails. Zubulake sought sanctions for spoliation. The preservation obligation attached when the employer reasonably anticipated litigation and required immediate implementation of a litigation hold on all relevant electronic communications.
Select any source to read its text and confirm it supports the definition.
State agents obtained an ex parte warrant and remotely disabled cloud servers belonging to a startup suspected of distributing stolen software. The warrant provided for an adversary hearing within five days. The startup challenged the seizure on due process grounds. Agents were required to maintain the servers and data intact pending the hearing.
Officers executed an arrest warrant at a private home and permitted a newspaper reporter and photographer to accompany them inside. The homeowner sued for violation of Fourth Amendment rights. Officers were required to protect the integrity of evidence and privacy interests during execution of the warrant.
The duty arises when a party knows or reasonably should know that evidence is relevant to pending or future litigation. At that point the party must suspend routine document retention or destruction policies and implement a litigation hold.
A preservation obligation may arise from common law, statutes, regulations, or a court order in a case. Courts have also held that the duty arises when a party has actual knowledge or notice of pending or future litigation.
No. The obligation extends only to relevant evidence that the party knows or reasonably should know may be relevant to pending or future litigation. Routine destruction may continue for documents outside that scope.
Failure to preserve relevant evidence can result in sanctions, including adverse inference instructions, monetary penalties, or default judgment, depending on the degree of culpability and prejudice to the opposing party.
…searches of an arrestee’s vehicle. Gant , like Robinson , recognized that the Chimel concerns for officer safety and evidence preservation underlie the search incident to arrest exception. See 556 U. S., at 338. As a result, the Court concluded that Chimel could authorize police to search a vehicle “only when the arrestee is…