The duty to preserve arises when litigation is reasonably anticipated, which is often well before a complaint is filed.
Trigger. A demand letter, a serious internal complaint, a regulatory inquiry, or a decision by the organisation itself to sue. Documenting the trigger date matters, because the adequacy of preservation is measured from it.
Scope. Custodians whose materials are likely relevant, plus non-custodial sources — shared drives, databases, backup systems, third parties holding data under the organisation’s control.
The notice. Plain language, specific about categories and sources, with instructions on what to stop doing: deleting, archiving, wiping devices, reformatting. Acknowledgement should be required and tracked.
Suspension of routine deletion. Automatic mailbox purges, chat retention policies, device refresh cycles, and backup rotation. This is the step most often missed, and the one most often fatal.
Follow-up. Periodic reminders, interviews with key custodians about where their data lives, and additions as new custodians are identified. A one-time notice with no follow-up is repeatedly criticised.
Release. The hold ends only when the matter and any related matters conclude, documented in writing.
Spoliation consequences range from cost-shifting through adverse-inference instructions to case-terminating sanctions, with intent to deprive the required finding for the most severe measures.