A preservation request is a written notice, usually a letter from one party or its attorney, telling you that specific documents, data, and physical items must be kept intact because a lawsuit is likely or already underway. It carries no filing fee and does not come from a court, but it reinforces a legal duty that is enforceable once litigation begins. Destroying or losing the material it covers can lead to monetary sanctions, adverse jury instructions, or in serious cases, dismissal or default judgment.
Preservation Request vs. Litigation Hold
These two terms get used as if they mean the same thing. They don’t. A preservation request is outward-facing: one side sends it to the other, to a potential adversary, or sometimes to a third party like a cloud storage vendor. Its job is to put the recipient on notice that relevant evidence must not be altered or destroyed.
A litigation hold is the internal answer to that notice. When an organization receives a preservation request, or otherwise realizes litigation is likely, it issues a hold to its own employees, IT team, and records managers directing them to stop routine deletion of anything that could be relevant. The request is the external demand. The hold is the compliance mechanism that responds to it.
When the Duty to Preserve Begins
The duty does not wait for a complaint to be filed, and it does not wait for a preservation letter either. Under federal law it begins the moment litigation is reasonably anticipated. Federal Rule of Civil Procedure 37(e) does not create the duty, but it addresses what happens when a party violates it, and the 2015 Advisory Committee Notes confirm that the rule builds on an existing common-law obligation that arises when litigation is foreseeable.1Federal Judicial Center. Civil Rules 2015 – Failure to Preserve Electronically Stored Information
Reasonable anticipation is a practical standard. Courts generally find it met when a person in your position would recognize a credible probability of being sued, or would seriously consider filing suit. Common triggers include a demand letter, word that a former employee or business partner is talking to counsel, or an incident such as a workplace injury, product defect, or data breach that makes a suit likely. Waiting for the complaint to arrive before preserving evidence is the single most common mistake, and courts have sanctioned parties for it repeatedly.
What the Request Typically Covers
Preservation requests are deliberately broad. They usually describe categories of information rather than specific files, and they reach both electronically stored information and physical materials.
Electronically Stored Information
ESI is where most preservation disputes arise, because digital data is easy to delete and easy to overlook. A typical request reaches emails (including drafts, sent items, and trash folders), text messages, instant messages, voicemails, social media posts, databases, spreadsheets, and files on workstations, laptops, tablets, network servers, USB drives, or backup tapes. The duty also covers metadata, the background information embedded in a file showing when it was created, modified, or accessed. Metadata matters because it can establish timelines and show whether a document was altered.
Physical Documents and Objects
Paper records fall within scope: contracts, invoices, handwritten notes, printed reports. So do physical objects relevant to the dispute. In a product liability case that means the product itself. In a construction dispute it could be building materials or equipment. If the item could conceivably serve as evidence, preserve it.
Privileged Materials
Attorney-client privileged communications still need to be preserved even though they are shielded from production. Privilege protects a document from being turned over to the other side during discovery. It does not exempt the document from the duty to preserve. If privileged files are destroyed and the court later finds them relevant, their privileged status will not excuse the loss.
How to Respond to a Preservation Request
Act quickly. Courts do not demand perfection, but they do expect reasonable steps taken in good faith.
Identify Custodians and Data Sources
Start with the people. A custodian is anyone within your organization who holds documents or data relevant to the dispute. Look past the obvious players: administrative assistants, IT staff, and anyone copied on relevant threads may hold important records. Then map the data sources: email servers, cloud platforms, shared drives, personal devices, third-party vendors. The duty to preserve applies to data in your possession, custody, or control, and that includes data you can access through a vendor relationship.
Issue an Internal Litigation Hold
Send a clear written notice to every custodian explaining what to preserve, why, and how. State that the hold continues until further notice. Make clear that it overrides any routine retention or auto-delete policies that would otherwise destroy relevant files. Automatic email purges, recycling bin cleanups, and records-management schedules all need to be suspended for the materials in question. Follow up periodically to confirm compliance. A hold notice that goes out once and is never reinforced tends to fail.
Collect and Secure the Evidence
Depending on the scale of the dispute, collection can range from copying files to a secure location to engaging a forensic specialist who creates bit-for-bit images of hard drives and servers. Forensic imaging produces an exact copy of all data on a device, including deleted files and hidden data a regular user cannot see.2National Institute of Standards and Technology. Digital Evidence Preservation – Considerations for Evidence Handlers For high-stakes cases, or disputes that may involve allegations of tampering, forensic imaging is the safer approach.
Document Every Step
Keep a detailed record: who received the hold notice and when, what data sources were identified, how collection was handled, and any problems that came up. If your preservation efforts are ever questioned in court, this paper trail is what demonstrates good faith. Courts evaluating whether a party took “reasonable steps” under Rule 37(e) look at the process, not just the outcome.3Cornell Law School. Federal Rules of Civil Procedure Rule 37
Pushing Back on an Overbroad Request
Not every preservation request is reasonable. Some demand that you freeze essentially all data across an entire organization for an indefinite period. You are not required to comply with requests that are disproportionate to the needs of the case.
Federal Rule of Civil Procedure 26(b)(2)(C) requires courts to limit discovery when the burden or expense outweighs the likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, and the importance of the issues at stake.4Cornell Law School. Federal Rules of Civil Procedure Rule 26 The same proportionality logic applies at the preservation stage. If preserving every email from 500 employees for a $30,000 contract dispute would cost more than the case is worth, that request is disproportionate.
The usual move is to contact the requesting party and negotiate a narrower scope. Federal litigation includes a required meet-and-confer process to discuss discovery issues, and preservation fits naturally into that conversation. If informal negotiation fails, you can ask the court for a protective order limiting the obligation. Courts have denied requests where the burden significantly outweighed the benefit, including cases where privacy and confidentiality concerns tipped the balance even when direct expense was modest. Raise the issue early. Silently ignoring portions of a request can look like bad faith.
Penalties for Failing to Preserve
Spoliation is the legal term for destroying, altering, or failing to preserve evidence that should have been kept. Rule 37(e) governs sanctions for lost ESI in federal court, and the consequences depend on whether the loss was negligent or intentional. Three threshold findings must exist before any sanction applies: the ESI should have been preserved in anticipation of litigation, the party failed to take reasonable steps to preserve it, and the information cannot be restored or replaced through additional discovery.1Federal Judicial Center. Civil Rules 2015 – Failure to Preserve Electronically Stored Information
Negligent Loss
When ESI is lost because a party failed to take reasonable steps but did not act with intent to destroy it, and another party is prejudiced by the loss, the court may order measures “no greater than necessary to cure the prejudice.” That could mean additional depositions, reopened discovery on certain topics, or an order requiring the spoliating party to pay the costs of reconstructing lost data.3Cornell Law School. Federal Rules of Civil Procedure Rule 37
Intentional Destruction
When a court finds that a party acted with the intent to deprive the other side of the evidence, the available sanctions are far more severe:3Cornell Law School. Federal Rules of Civil Procedure Rule 37
- An adverse presumption that the destroyed information was unfavorable to the party who lost it.
- A jury instruction that the jury may or must assume the missing evidence would have hurt the spoliating party’s case.
- Case-ending sanctions, meaning dismissal of the spoliating party’s claims or entry of a default judgment against them.
Monetary sanctions, including attorney’s fees spent uncovering the spoliation, can accompany any of these remedies.
In State Court
Rule 37(e) applies in federal court. State courts have their own spoliation frameworks, and standards vary. Many rely on the court’s inherent power to sanction evidence destruction, and the available remedies generally mirror the federal options: adverse inferences, exclusion, dismissal, or default. If your case is in state court, the rules of that jurisdiction control.
When the Duty Ends
The duty to preserve does not last forever, though it lasts longer than most people expect. A litigation hold can be released when the matter has concluded or is no longer reasonably anticipated. Concluded means one of three things: all parties have signed a final settlement and release, the court has entered a dismissal with prejudice, or the deadline for any further appeals has passed and the judgment is final.5NOAA General Counsel. Designing, Implementing, Maintaining and Releasing Litigation Holds
The harder call is deciding when litigation is no longer reasonably anticipated without a formal conclusion. Courts look at whether the decision to release the hold rested on a good-faith, reasonable evaluation of the facts and circumstances known at the time. Lifting a hold prematurely because you assume a dispute has blown over, only to be sued six months later, can result in spoliation sanctions.
When you do release a hold, send a formal notice to all custodians confirming that the preservation obligation has ended, and keep the hold records in case preservation adequacy is ever questioned later.