Know When to Hold Em: Case Law Trends Regarding Legal Holds and Preservation

In our last post, we discussed various categories of preservation pitfalls – such as delayed implementation of legal holds, incomplete scoping of data placed on hold, failure to suspend auto-deletion, and poor custodian communication – and how to avoid them.

Case law trends are the best illustration of best practices for preserving electronically stored information (ESI) (including issuing and managing legal holds) and the preservation pitfalls that occur when parties fail to exercise those best practices. Guidance from the courts is the best teacher for demonstrating the importance of ESI preservation best practices and the ramifications of failing to adhere to them. In this post, we’ll discuss ten recent cases that illustrate best practices for issuing legal holds and preservation of data where parties have succeeded or fallen short.

Ten Cases Illustrating Preservation Best Practices

There are many disputes each year involving claims of spoliation of evidence by parties. The 2024 eDiscovery Case Law Year in Review report by eDiscovery Assistant (now Minerva26) shows that there were 326 cases involving spoliation disputes last year, and there are already over 250 cases in 2025. So, there are plenty of examples to choose from between last year and this year!

As a result, we’ve chosen ten case law rulings from the past two years that illustrate the complexity of preserving ESI in the modern data era, as well as the consequences for failing to do so. Here they are in chronological order:

Nagy v. Outback Steakhouse, Feb. 2024: Here, the plaintiff experienced a serious slip and fall accident at an Outback Steakhouse. The restaurant’s surveillance system captured the incident on video; however, significant portions of the footage were later overwritten due to the system’s seven-day storage loop policy. The Court found that defendant Outback had a duty to preserve the video footage, as well as an internal incident report related to the incident and assessed a permissive adverse inference instruction sanction. This case illustrates the importance of suspending auto-deletion of video evidence when there’s a reasonable anticipation of litigation.

Jones v. Riot Hosp. Grp. LLC, March 2024: In this case, the Ninth Circuit Court of Appeals affirmed terminating sanctions for deletion of text messages by the plaintiff after an expert report concluded that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order has occurred.” That included deleting text messages and switching to a new phone when ordered to produce the phone for forensic examination. This case illustrates the importance of mobile device evidence and the consequences of intentionally deleting that evidence.

Maziar v. City of Atlanta, June 2024: Here, the District Judge sustained in part and overruled in part the plaintiff’s objections to the Magistrate Judge’s order denying spoliation sanctions against the defendant, finding that the defendant’s text message spoliation was not in bad faith, but that the plaintiff was prejudiced. He ordered denial of the defendant’s pending motion for summary judgment and attorneys’ fees and costs for the plaintiff associated with prosecuting the sanctions motion. This case illustrates how sanctions can still occur under FRCP Rule 37(e)(1) if a party is prejudiced by the spoliation.

Pable v. Chicago Transit Auth., Aug. 2024: Here, the District Judge adopted the Magistrate Judge’s recommendations for case dismissal, concluding there was intent to deprive plaintiff’s Signal messages, after plaintiff’s attorney had produced a forensic “image” of plaintiff’s phone that contained only 0.2 GB of user-generated data. A second image coordinated by the defendant contained 25 GB of unique data, including several highly relevant Signal messages. The plaintiff and his counsel were also assessed monetary sanctions of nearly $150,000. This case illustrates the importance of messaging apps like Signal and the consequences for preserving those in discovery.

EEOC v. Formel D USA, Inc., Sept. 2024: In this case, the Court ordered Defendant to “produce the litigation hold notice, the date the notice was sent to employees, and the names of all recipients of the notice” after emails were lost for two key custodians and Defendant failed to have a policy regarding preservation of cellular telephone data. This case illustrates how preservation failures can lead to “discovery on discovery”.

Gregory v. State, Sept. 2024: In this case, the Ninth Circuit Court of Appeals reversed the district court’s sanctions orders and judgment against the State in a § 1983 excessive-force claim, finding that the district court erred in relying on its inherent authority rather than applying the provisions of FRCP Rule 37(e) to spoliation claims regarding video footage. This case shows how the Federal Rules have changed to ensure consistency in sanctions rulings regarding spoliation of ESI.

FTC v. Match Grp., Inc., Jan. 2025: Here, Defendant provided supplemental productions after the discovery period when it discovered a technological glitch in its Microsoft Office 365 archival system that resulted in a failure to produce a few hundred.  Despite the FTC’s request for significant sanctions against the Defendant under Rule 16(f)(1) for failing to produce documents until after the deadline, the Court merely granted the FTC the ability to conduct additional limited discovery on the late-produced documents. This case illustrates the importance of preservation of data within enterprise solutions today. It also shows the importance of responding promptly when a problem is identified. Defendant’s promptness in addressing the issue and notifying opposing counsel likely saved it from more significant sanctions.

Hubbard v. Crow, June 2025: Here, the Court, finding that Plaintiff had control of a hyperlinked podcast file possessed by a podcaster, ordered the plaintiff to request the original file from the podcaster to avoid the possibility of sanctions under Rule 37(e) after Plaintiff’s counsel had instructed plaintiff to cut four minutes from the podcast. This case illustrates how even linked files possessed by another party could still be subject to sanctions if they are spoliated.

Sky Jet M.G. Inc., v. VSE Aviation Services, LLC, June 2025: Here, the Court found that Plaintiff had intent to deprive Defendant of Cockpit Voice Recorder (CVR) readouts from a plane hot-start incident and ordered adverse inference sanctions, preclusion of pilot testimony and award of attorneys’ fees and expenses against Plaintiff. This case illustrates how any form of electronic data (even unusual forms) are subject to ESI preservation rules under FRCP Rule 37(e).

Clayton Int’l, Inc. v. Neb. Armes Aviation, LLC, July 2025: Here, the District Judge overruled the Magistrate Judge’s ruling limiting sanctions to monetary sanctions after defendant Tracy Ogle disposed of his hard drive from his laptop after litigation commenced, claiming it malfunctioned. He found that non-monetary sanctions in the form of an instruction to the jury on the spoliated evidence was warranted. This case shows that efforts to pursue additional sanctions for spoliation of evidence sometimes pays off!

Conclusion

One of the common threads among these cases is how parties address their preservation obligations. Rule 37(e) saves the most serious sanctions for those parties who exhibit an intent to deprive the opposing party of evidence. While sanctions can occur for non-intentional spoliation of evidence, they typically don’t rise to the level of sanctions when intentionality is present. Courts expect reasonableness, not perfection. The more reasonable your preservation efforts are, the more likely you can avoid significant sanctions.

In our next post, we’ll discuss considerations for preservation across a variety of data sources, including enterprise solutions, mobile devices, structured data/databases and generative AI content. Stay tuned!

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