Preserving Evidence: A Guide For Businesses Facing Or Anticipating Initiating Litigation

• Published date: 22 January 2025
• Law Firm: Michael Best
• Author: Katie Fillmore

As an attorney with extensive experience representing businesses, one of the most critical pieces of advice I can offer is this: if litigation seems likely, the first and most important step is to ensure the preservation of relevant evidence. Failing to do so can result in severe legal and financial consequences, including sanctions and adverse jury instructions. Beyond that, preserving all relevant information is essential to being able to successfully prove a case. Below, I outline the steps businesses should take to preserve evidence and review the legal framework governing this duty under both federal and Texas law.

Understanding the Duty to Preserve Evidence

Federal Law

The duty to preserve evidence under federal law is governed by case law interpreting Rule 37 of the Federal Rules of Civil Procedure (FRCP). This duty arises when a party reasonably anticipates litigation. The seminal case Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212 (S.D.N.Y. 2003), provides a foundational analysis of this duty. The court in Zubulake held that:

• The obligation to preserve evidence is triggered when litigation is pending or reasonably foreseeable.
• Parties must take affirmative steps to identify and preserve all relevant evidence, including electronically stored information (ESI).
• Failure to preserve evidence can result in sanctions, including monetary penalties, adverse inference instructions, or dismissal of claims.

Texas State Law

Under Texas law, the duty to preserve evidence similarly arises when litigation is reasonably anticipated. Texas courts have recognized this obligation in cases such as Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). In Brookshire Brothers, the Texas Supreme Court emphasized:

• Spoliation occurs when evidence is destroyed or altered.
• Courts will impose remedies, including sanctions, if the spoliation prejudices...