Spoliation involves the loss or destruction of evidence that should have been preserved. Preservation duties can arise before a lawsuit is filed, but their trigger and reasonable scope depend on the governing law, notice, relevance and proportionality. This guide uses federal civil litigation involving electronically stored information as its main example. State proceedings and physical evidence can involve different rules. Reasonable preservation focuses on relevant records, not indiscriminate retention of every file.
The federal rule for electronic information
For electronically stored information (ESI) in federal civil cases, Federal Rule of Civil Procedure 37(e) addresses the loss of information subject to a preservation duty; it does not create a new duty itself. It applies when ESI that should have been preserved “in the anticipation or conduct of litigation” is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. Two things stand out in the rule itself: it recognizes that the preservation duty can arise in anticipation of litigation, and the focus is on whether preservation steps were reasonable — not on perfection.
Losing evidence is not an automatic penalty
Rule 37(e) separates a failure to take reasonable preservation steps from intentional destruction aimed at depriving the other side of the information. If another party is prejudiced by the loss, a court “may order measures no greater than necessary to cure the prejudice.” The severe sanctions — presuming the lost information was unfavorable, instructing a jury to that effect, or dismissing the case or entering default — are available only on a finding that the party “acted with the intent to deprive another party of the information’s use in the litigation.” Negligence, even gross negligence, is not enough for those most serious measures.
Beyond federal ESI
Rule 37(e) governs ESI in federal civil cases. Physical evidence, and cases in state court, may be handled under different rules and standards, and state approaches vary, including whether spoliation can support a separate claim. So the federal framework here is a reference point, not a nationwide rule for every kind of evidence.
Hypothetical example
Imagine a small company expects a federal civil lawsuit over a failed software project. Its email system is set to auto-delete messages after 90 days. Once litigation is reasonably foreseeable, a sensible step is to pause that auto-deletion for the relevant accounts and preserve the project files and their metadata. If the company instead lets the purge run and key emails vanish, a court could order measures to cure any resulting prejudice — and, if it found the company deleted them intending to deprive the other side of their use, could impose far more serious sanctions. This scenario is illustrative only.
A practical preservation checklist
- Preserve originals and metadata. Keep documents, emails, and files in their original form, not just printouts.
- Pause relevant auto-deletion. Suspend retention or purge settings for the accounts and systems that may hold relevant records.
- Do not alter files. Editing, renaming, or “cleaning up” can itself cause problems.
- Stay within your own access. Do not log into other people’s devices or accounts to gather evidence.
- Get advice early. A lawyer can help define a reasonable scope; there is no one-size retention timetable.
This is general legal information, not legal advice, and it does not create a lawyer–client relationship; preservation duties and sanctions differ between federal and state courts and by the type of evidence, so consult a lawyer about the obligations that apply to your dispute.
Sources
The material this guide relies on, with the jurisdiction each source covers. Links open the publisher’s own site.
- Federal Rule of Civil Procedure 37(e) — failure to preserve electronically stored information, Cornell Legal Information Institute: law.cornell.edu/rules/frcp/rule_37 (federal primary rule text).