How Do I Preserve Evidence If I Anticipate Litigation?

When there’s even a hint that a legal dispute might be coming, one of the first things to focus on is preserving evidence. Failing to secure key documents, emails, texts, or other data can damage a case before it even starts—and may even lead to court sanctions.

1. Understand the Duty to Preserve

Once litigation is reasonably anticipated, parties have a legal obligation to preserve all evidence that could be relevant to the dispute. This duty applies to both plaintiffs and defendants, and it kicks in even before a lawsuit is formally filed. Courts take this duty seriously, and failing to preserve relevant material—whether intentional or not—can lead to serious consequences, including adverse inferences or monetary penalties.

2. Issue a Litigation Hold

A litigation hold is a formal written directive sent to individuals or departments within an organization to suspend routine data destruction and preserve relevant information. It’s typically prepared and distributed by legal counsel, and should clearly outline what must be preserved, how to preserve it, and who is responsible. Litigation holds should be issued promptly and updated as necessary throughout the life of the dispute.

3. Identify All Sources of Potential Evidence

Preserving evidence isn’t just about email or documents saved on a desktop. Relevant information could live in many places, including:- Cloud storage platforms- Instant messaging apps (Slack, Teams, etc.)- Text messages and call logs- Voicemails and handwritten notes- Backups and archived data- Personal devices used for business purposesIt's important to take a wide-angle view when identifying where potentially relevant data may reside.

4. Coordinate with IT and Legal Teams

Legal and IT teams should work closely to ensure that technical measures are taken to suspend auto-deletion protocols and secure digital records. This might include disabling email retention policies, backing up cloud data, and creating mirror images of drives and databases when necessary. The earlier these teams collaborate, the better the organization can prevent accidental loss or overwriting of data.

5. Avoid Selective or Incomplete Preservation

It may be tempting to only preserve information that seems favorable—but doing so is risky. Courts expect parties to act in good faith, and selective preservation can be seen as misleading or dishonest. Preserve both helpful and potentially harmful materials. In fact, erring on the side of over-preserving is usually the safer route.

6. Document the Preservation Process

Keep clear records of what was preserved, when, and how. This documentation can serve as critical support if there’s ever a dispute over whether the duty to preserve was fulfilled. It also helps demonstrate good faith efforts to the court and opposing counsel.

Conclusion

Preserving evidence is more than a best practice—it’s a legal requirement and a foundational step in any litigation strategy. Taking early and comprehensive action to safeguard information can protect a case, maintain credibility, and avoid costly legal consequences. When litigation is on the horizon, treat preservation as a priority from day one.