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Preserving Evidence: Litigation Holds and Spoliation

·

By

ACL

The short answer

Once litigation is reasonably foreseeable, parties must preserve relevant evidence, including emails, texts, files, and physical items. A litigation hold is the written instruction that suspends normal deletion. Losing evidence after that point is called spoliation and can lead to serious consequences.

Why it matters

Evidence problems can decide a case regardless of the merits. Courts can bar evidence, instruct the jury to assume lost material was harmful, or impose other sanctions.

Where it fits in your case

When a dispute is threatened, a demand letter arrives, or a lawsuit is filed, and often earlier if a loss or incident makes litigation likely.

What to expect

  • Duty to preserve. Illinois generally recognizes no duty to preserve evidence unless one arises from an agreement, contract, statute, special circumstance, or voluntary undertaking, and a reasonable person would foresee the evidence’s importance to a potential lawsuit. Parties to litigation also face court sanctions for failing to preserve relevant evidence.

  • Electronic data. Auto-delete settings, phone replacements, and departing employees’ accounts are common sources of lost evidence.

  • Sanctions. Illinois courts can impose sanctions for discovery violations, and Illinois also treats negligent loss of evidence as a possible negligence claim.

  • Third parties. Vendors and cloud providers may hold relevant data that needs to be requested or preserved.

What to do now

  • Issue a written litigation hold to everyone likely to have relevant information.

  • Suspend auto-delete for relevant email, chat, and file systems.

  • Preserve phones, laptops, and physical evidence.

  • Ask the other side, in writing, to preserve its evidence too.

What we need from you

A list of people involved, the systems where relevant data lives, and any physical evidence.

Common misconceptions

  • “We only need to save what helps us.” The duty covers relevant evidence, good and bad.

  • “Texts on personal phones don’t count.” They often do if they relate to the dispute.

This resource provides general information about Illinois and federal law, not legal advice about your situation. Reading it does not create an attorney-client relationship. The right answer often depends on the specific facts, contract language, policy wording, and deadlines involved.

ALLISONCHOLAW / BUSINESS LITIGATION & COUNSEL

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