Litigation Hold Letter: Duty to Preserve, Sanctions, and Templates

Spoliation of evidence is the destruction, alteration, or failure to preserve evidence that is potentially relevant to current or anticipated litigation. The duty to preserve attaches the moment a party reasonably anticipates litigation, which is often well before a complaint is filed. When the duty is triggered, every party must take affirmative steps to suspend ordinary document retention practices, issue litigation hold notices, and preserve electronically stored information including emails, text messages, surveillance video, and database records. Federal Rule of Civil Procedure 37(e), revised in 2015, governs the sanctions available for failure to preserve electronically stored information, with parallel common-law rules and state-court analogs governing physical evidence and pre-2015 conduct.

When the Duty to Preserve Attaches

The duty arises when a party knows or reasonably should know that evidence may be relevant to current or anticipated litigation. Triggering events include receipt of a formal demand letter, an EEOC charge, a workers compensation claim, an internal complaint that could reasonably lead to litigation, or simply a serious incident (a workplace injury, a customer fall, a data breach) that a reasonable person would expect to result in claims. Once the duty attaches, ordinary document destruction practices must be suspended for relevant materials, and a written litigation hold notice should be circulated to every custodian who may possess relevant information.

The duty arises when litigation is "reasonably anticipated," a standard articulated in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV), and applied through the Federal Rule of Civil Procedure 37(e) framework. 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), held that the duty extends to all key players. Sarbanes-Oxley, 18 U.S.C. § 1519, criminalizes destruction of documents in contemplation of a federal investigation. ABA Model Rule 3.4(a) prohibits unlawfully obstructing access to evidence. State preservation duties trace to common law and are codified in Texas Rule of Civil Procedure 196.4 (electronic data) and Cal. Code Civ. Proc. § 2031.060 (production).

Sanctions Available Under Rule 37(e)

Conduct	Required Showing	Available Sanction
ESI lost without prejudice to the other party	None; no sanction	None
ESI lost with prejudice but no intent to deprive	Prejudice; loss could not be cured	Measures no greater than necessary to cure prejudice
ESI lost with intent to deprive another party of its use	Intent to deprive	Adverse-inference instruction, dismissal, or default

Examples of Spoliation

The classic examples: an employer that recycles backup tapes containing emails relevant to a discrimination claim after receiving an EEOC charge; a trucking company that loses driver logs and dashcam footage after a serious accident despite a preservation letter; a hospital that overwrites surveillance video on a 30-day rolling basis after a slip and fall on the premises; an employee who deletes text messages from a personal phone known to contain communications relevant to a wrongful-termination claim. In each example, the duty to preserve had attached and the destruction was avoidable. Each typically results in sanctions ranging from cost-shifting to adverse-inference instructions to default judgment.

Federal Rule of Civil Procedure 37(e) (as amended in 2015) supplies the exclusive sanctions framework for ESI: 37(e)(1) permits measures no greater than necessary to cure prejudice when ESI is lost; 37(e)(2) permits adverse-inference instructions, dismissal, or default judgment only on a finding the party acted with intent to deprive. The Advisory Committee Notes (2015) make clear that mere negligence is insufficient for the 37(e)(2) severe sanctions. Pre-amendment cases like Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V), are partially superseded. Inherent-power sanctions remain available under Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

Litigation Hold Notices

The litigation hold notice is the central document. It identifies the matter, describes the evidence to be preserved (categories of documents, ESI, physical evidence, video), names the custodians required to comply, and gives clear instructions on how to suspend ordinary destruction practices. The hold should be reissued periodically, expanded as discovery reveals additional custodians or categories, and lifted only when the matter is finally resolved. Courts have sanctioned parties for hold notices that were too narrow, not reissued, or not enforced. Our litigation team drafts litigation hold letters for plaintiffs and defendants in federal and state-court litigation.

Spoliation Letters

A spoliation letter (also called a preservation letter or evidence preservation letter) is sent by the plaintiff or potential plaintiff to a defendant or potential defendant before suit is filed. The letter formally puts the recipient on notice that litigation is anticipated, identifies the evidence to be preserved, and triggers the legal duty to preserve. The letter creates a record of notice that can later support a spoliation motion if evidence is destroyed after receipt. Most spoliation letters are sent within days of an incident in personal injury, products liability, and employment cases.

Adverse-Inference Instruction

The most common spoliation sanction is the adverse-inference instruction: the trial judge tells the jury that it may (or in some jurisdictions, must) infer that the destroyed evidence would have been unfavorable to the spoliating party. Under Rule 37(e)(2), the adverse-inference instruction for ESI requires intent to deprive; mere negligence is not enough. Adverse-inference instructions are case-altering: in many cases the inference itself is enough to flip the verdict, even if the underlying evidence would not have been particularly damning.

Default Judgment and Dismissal as Sanction

The most severe sanctions, default judgment for the plaintiff or dismissal of the plaintiff's claims, are reserved for the most egregious spoliation: intentional destruction, repeated destruction after court orders, or destruction so pervasive that the case cannot be fairly tried. Federal courts apply a multi-factor test (the Schmid v. Milwaukee Electric Tool factors or its circuit equivalent) considering the degree of fault, the prejudice to the opposing party, and whether lesser sanctions would suffice. The threshold is high but not unreachable.

Spoliation Motion Practice

A spoliation motion is filed when the moving party discovers, usually during discovery, that evidence has been destroyed or altered after the duty to preserve attached. The motion sets out the timeline of the duty's attachment, the destruction, and the resulting prejudice. The court holds an evidentiary hearing if the facts are disputed and rules on sanctions. Our litigation team files spoliation motions and defends against them with full Rule 37(e) analysis.

Related Civil Procedure Guides

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Frequently Asked Questions

When should a litigation hold letter be sent?

A litigation hold letter should be sent the moment litigation becomes reasonably foreseeable, which is often before a complaint is filed. The duty to preserve attaches at that point under Zubulake v. UBS Warburg and is now codified for federal court in FRCP 37(e). Companies should send hold letters when they receive a demand letter, learn of a customer injury, or anticipate filing suit. Late hold letters expose the client to spoliation sanctions.

Who can send a spoliation letter?

Any potential plaintiff or defendant can send a spoliation letter (also called a preservation letter or evidence preservation letter). The letter is most commonly sent by personal injury, products liability, and employment plaintiffs to put the defendant on notice that litigation is anticipated and to identify evidence to be preserved. Receipt of the letter formally triggers the legal duty to preserve, even if the lawsuit is not filed for months.

What should a litigation hold letter include?

A litigation hold letter should identify the matter giving rise to the duty, define the scope of relevant information, list the categories of documents and electronically stored information to preserve, identify custodians who must comply, suspend any document-destruction or auto-delete policies, and provide instructions for questions. The letter should be issued in writing, tracked, and updated as the matter develops.

Who is responsible for issuing a litigation hold?

Inside counsel, outside counsel, and the records-management function share responsibility for issuing and enforcing a litigation hold. The duty to preserve runs to the party, not the lawyer, but counsel typically drafts the hold letter, identifies custodians with the client's help, and supervises ongoing compliance. In small entities, the general counsel or owner issues the hold directly. The party bears the consequences of any failure regardless of who drafted the letter.

When to Hire a Lawyer for Spoliation Issues

Spoliation can win or lose a case before trial begins. Our litigation team drafts litigation hold notices, sends and responds to spoliation letters, and files Rule 37(e) sanctions motions when evidence has been destroyed after the duty to preserve attached.