The obligation to preserve evidence does not start when a lawsuit is filed. It starts earlier — when litigation becomes reasonably foreseeable — and businesses that keep deleting on autopilot past that point face sanctions that can decide a case before the merits are ever reached. Here is when the preservation duty arises for California businesses, what a litigation hold actually requires, and why routine data practices are usually the problem.
When the duty to preserve begins
The trigger is reasonable foreseeability, not service of a complaint. A demand letter, a lawyer's preservation notice, an employee's termination accompanied by threats of legal action, a serious workplace accident, a regulator's inquiry, or an internal decision to sue someone else — any of these can make litigation reasonably foreseeable and start the clock. The California Supreme Court's decision in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 frames the modern landscape: California does not recognize a separate tort claim for spoliation by a litigation adversary, but that is because the courts enforce preservation through other means — discovery sanctions, evidentiary consequences, and professional discipline — inside the case itself. The absence of a spoliation tort is not a free pass; it means the punishment arrives where it hurts most, in the lawsuit you are already fighting.
What happens when evidence disappears
Under Code of Civil Procedure § 2023.030, California courts can respond to the destruction of discoverable evidence with escalating sanctions: monetary sanctions, evidence sanctions excluding what the destroying party wants to use, issue sanctions deeming facts established against it, and — in serious cases — terminating sanctions ending the case outright. Juries may also hear a willful-suppression instruction (CACI No. 204; Evidence Code § 413) inviting them to infer that destroyed evidence was unfavorable. In federal court, Rule 37(e) governs lost electronically stored information, with the harshest remedies reserved for intentional deprivation. The practical translation: destroyed emails rarely stay a technology story; they become the story of the case.
What a litigation hold actually is
A litigation hold is a documented instruction to preserve potentially relevant information, plus the follow-through that makes the instruction real. Done properly, it includes:
- A written notice to every employee likely to have relevant material, describing the dispute, the categories of information to preserve, and a contact for questions.
- Suspension of routine destruction for affected data — auto-delete rules in email, chat retention settings, document purge schedules, and recycling of departed employees' devices and accounts.
- A data map of where relevant information lives: email, Slack or Teams, text messages, shared drives, cloud apps, phones, and third-party vendors.
- Acknowledgment and follow-up. A hold sent once and never mentioned again is difficult to defend; periodic reminders and tracking of who confirmed receipt are what make it credible.
The traps that catch ordinary businesses
Most spoliation problems are not shredding-at-midnight stories. They are default settings: a 30-day email auto-delete that keeps running, a messaging app set to disappear, a departing custodian's laptop wiped by IT on schedule, a personal phone traded in with the texts on it. Two habits create most of the exposure — treating the demand letter as noise ("we'll deal with it if they sue") and assuming IT knows about the dispute. The duty attaches to the company, and "our system deleted it automatically" is an explanation, not a defense, once the duty has arisen. Preservation obligations also run in your favor: when your business is the one about to assert claims, sending the other side a preservation letter early protects the evidence your case will need. Both directions are standard early moves in business litigation.
Build the reflex before you need it
The companies that manage holds well decided in advance who issues them, what the notice template says, and how IT suspends auto-deletion — so the response to a demand letter is a checklist, not a scramble. Pairing a written retention policy with a hold procedure has a second benefit: deletion that happens under a consistent, documented policy before any duty arises is ordinary business; deletion that happens ad hoc after a dispute surfaces looks like something else. Setting up that framework is exactly the kind of preventive project an outside general counsel puts in place before the first dispute tests it.
Talk to a California business attorney
If a demand letter, threat, or brewing dispute has you wondering what you are required to preserve, get advice now — the preservation clock may already be running. Schedule a free consultation or call (949) 418-2113.
This article is attorney advertising and provides general information only. It is not legal advice and does not create an attorney–client relationship. Facts matter; consult a lawyer about your specific situation.
