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When a dispute looms, one of the most important — and most overlooked — obligations is preserving evidence. Once litigation is reasonably anticipated, the law generally requires preserving potentially relevant materials, and failing to do so, even inadvertently, can seriously harm your position and create problems beyond the underlying dispute. This guide explains what to preserve, why it matters, and the risks of getting it wrong. It is general information, not advice on a specific situation.

We help businesses get this right from the start. This is general information, not advice on a specific situation.

The moment a dispute becomes likely, deleting the wrong file stops being routine.

The duty to preserve

When litigation is reasonably anticipated — not just after a lawsuit is filed, but once a dispute makes litigation foreseeable — there’s generally a legal obligation to preserve potentially relevant evidence. As the Legal Information Institute’s overview of law.cornell.edu reflects, litigation depends on evidence, and the law protects its integrity by requiring preservation once a dispute is anticipated. This means the obligation can arise before formal proceedings begin. Understanding that the duty to preserve is triggered by the reasonable anticipation of litigation — not merely by being sued — is crucial, because acting too late, after relevant evidence is already lost, can cause serious harm.

Losing evidence can create a problem on top of the one you already have.

What to preserve

The duty extends to potentially relevant materials, which can be broad: documents, emails and other communications, records, files, and other information related to the dispute, in whatever form they exist. Because electronic information is easily and often automatically deleted, a key part of preservation is suspending routine deletion or destruction of potentially relevant records — including automated processes that might otherwise erase them. The scope of what must be preserved depends on the dispute, but the safe approach when litigation looms is to identify and preserve the categories of information that could be relevant, erring toward preservation. Failing to capture relevant materials, especially electronic ones, is a common and serious preservation failure.

The risks of getting it wrong

Failing to preserve evidence can cause serious harm beyond the underlying dispute. If potentially relevant evidence is lost or destroyed after the duty to preserve arose — even inadvertently through routine processes — it can significantly damage your position and lead to additional legal consequences, separate from the merits of the original claim. In other words, mishandling preservation can create a second problem on top of the first. As a matter that can affect how a law.cornell.edu or other dispute unfolds, evidence preservation carries real stakes. This is why treating the obligation seriously, and acting promptly when litigation is anticipated, is so important to protecting your standing.

Preserving properly

To preserve evidence properly when a dispute looms: act promptly once litigation is reasonably anticipated, identify the categories of potentially relevant information, suspend routine deletion or destruction of those materials, and take steps to safeguard them — including electronic records and communications. Because the scope and requirements can be nuanced, and because getting it wrong carries serious consequences, getting legal guidance early when a dispute is developing helps ensure you preserve appropriately. Preservation is one of the first things to address when litigation becomes foreseeable, not something to sort out later. Handled promptly and properly, it protects both your case and your standing; neglected, it can undermine both.

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