Most people know that any party to litigation unquestionably owes an “uncompromising duty to preserve” what they know or reasonably should know may be relevant evidence in their lawsuit. What they don’t know is this is true before any discovery requests are served, and sometimes, even before the complaint is filed. Here’s a primer on the duty to preserve evidence and its violation: “spoliation.”
Duty to Preserve Evidence
The duty to preserve evidence arises when:
Litigation is “pending” or “probable”; You know of the existence or likelihood of the litigation; You know of the evidence’s relevance to the litigation; and It’s foreseeable that the opposing party will be prejudiced if the evidence was destroyed.
Under this basic principle, the duty is generally considered triggered, at the latest, when the defendant is served with the complaint. But before that point, most courts also agree that the defendant’s receipt of a demand letter, or some other threat of litigation, will also trigger the duty. That’s why as a general rule, we recommend our clients err on the side of caution and immediately instruct them to take steps to preserve all potentially relevant documents, including emails and the like, that might