The duty to preserve arises from common law and attaches when a party knows or reasonably should know that evidence may be relevant to pending or anticipated litigation. It requires suspending routine deletion and taking affirmative steps to retain relevant material.
It extends to information within the party's possession, custody, or control, which can include data held by vendors, affiliates, and in some circumstances employees on personal devices.
Alternative Names:
Preservation Obligation, Preservation Duty
Why it Matters?
Identifying the trigger date is the most consequential judgment in the preservation analysis, because everything deleted afterward is potentially sanctionable and everything before it generally is not. Parties routinely fix the trigger too late, and plaintiffs argue it back to a demand letter, an internal incident report, or an investigation opened months earlier.
Frequently Confused with
Related terms
Frequently asked questions
When does the duty to preserve attach?
Does the duty extend to employee personal devices?
