Spoliation of evidence: what to preserve in a dispute

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.

Litigation hold notices

A litigation hold (also called a legal hold) is a written instruction to keep material that may matter to a dispute. The committee note to Rule 37(e) explains that the routine, good-faith operation of an electronic system is a factor courts weigh, but the prospect of litigation may call for stepping in to stop that routine. A written hold is one way to do that.

Organizations write their own hold policies. One example is the litigation holds policy of Michigan’s Department of Licensing and Regulatory Affairs, an internal state agency policy rather than a court rule. It issues a hold when a lawsuit is filed or reasonably anticipated, for instance after a preservation request, a cease-and-desist letter or an event that causes injury. Its holds reach paper files, email, voicemail, text messages, data on computers and devices, backup media, and work material kept off-site or on personal devices. Notices go to employees and supervisors, and also to agents, contractors, vendors and IT staff. While a hold is in place, any retention schedule that would allow the covered records to be destroyed is suspended.

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.

Physical evidence: vehicles, products and premises

The committee note to Rule 37(e) says the rule applies only to electronically stored information. Part of its reasoning is that electronic data often exists in several places, so losing one copy may do no harm if a substitute turns up elsewhere. Physical evidence often works differently. A wrecked vehicle, a failed product, or a broken stair or spill on a store floor may exist in only one form, and once it is repaired, scrapped or cleaned up, there may be no copy to fall back on.

Because Rule 37(e) does not cover these items, the consequences of losing them depend on other law in the court hearing the case, which varies by state. The note also says the rule does not affect an independent tort claim for spoliation where state law applies and allows one. What the federal rules do provide is a way to examine physical evidence: under Federal Rule of Civil Procedure 34, a party may request to inspect, test or sample tangible things another party controls, and to enter property to inspect, measure, photograph or test it. Nonparties can be compelled to produce tangible things or permit an inspection as provided in Rule 45.

How a state court may treat it: California’s jury instruction

States set their own approaches, so this section uses one labeled example. In California civil trials, judges may give CACI No. 204, Willful Suppression of Evidence (2026 edition of the official Judicial Council instructions). It tells jurors they may consider whether a party intentionally concealed or destroyed evidence, and that if it did, they may decide the evidence would have been unfavorable to that party. The instruction lists California Evidence Code section 413 as its source.

The instruction’s directions for use limit it: it should be given only if there is evidence of suppression. If the evidence shows a party altered evidence rather than hiding or destroying it, the directions suggest modifying the instruction. They also note the California Supreme Court’s observation that trial courts may adapt the standard instruction to fit the case, including how serious the spoliation was. This is a California rule only; other states use their own instructions and standards.

If you think the other side destroyed evidence

The remedies described above come from the court. Under Rule 37(e), a judge decides whether information should have been preserved, whether its loss caused prejudice, and whether a party acted with intent to deprive. The committee note lists measures a court may use to cure prejudice, such as barring a party from offering certain evidence or letting both sides present evidence and argument to the jury about the loss. None of that happens unless the issue is raised in the case.

In practice, that means writing down what you know: what the item or record was, who had it, when you last saw it, and when you learned it was gone. Keep your own copies and photos. Use formal discovery, such as a Rule 34 request to inspect, in federal cases, or the equivalent tools in state court. Do not try to recover evidence by entering someone else’s property, devices or accounts. That kind of self-help can create problems of its own.

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.
• Put the hold in writing. Tell everyone who may hold relevant material, including outside vendors, what to keep and that routine deletion is paused.
• Secure physical items. Hold off on repairing, scrapping or discarding vehicles, products or premises conditions, and photograph them first.
• 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.
• Raise suspected loss with the court. Document what went missing and when, and bring it up through the case rather than acting on your own.
• 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.