Litigation Holds: Preserving Evidence When a Dispute Starts in California

Last updated: November 2026

A litigation hold is a written instruction from a business to its people and systems to preserve every document, email, message, and file that may be relevant to a dispute. The duty to preserve arises when litigation is reasonably anticipated, which is often before any lawsuit is filed. Destroying evidence after that point is spoliation, and California courts punish it with adverse inferences and discovery sanctions. Kolmogorov Law, P.C. issues and enforces litigation holds for businesses in Orange County, Los Angeles, and across California.

Call (909) 235-6116 or contact us online if a dispute is starting and you need to know what to keep.

When the duty to preserve begins

No California statute names the day. The duty attaches when a party knows, or reasonably should know, that evidence may be relevant to anticipated litigation. A demand letter, a threat to sue, or a decision to sue is enough.

If your company has received a lawyer's letter, our demand letter guide explains why the hold goes out the same week. If your company is preparing to sue, the duty attaches just as firmly. Our guide to suing a company addresses it.

I tell clients to use a simple test. If you would be uncomfortable explaining to a judge why a document was deleted, the duty has already begun.

What a litigation hold actually is

The hold is a memo. It goes to the people who touched the matter, the custodians, and to whoever runs the company's email, file storage, and messaging systems. It describes the dispute in a sentence and lists the categories of material to preserve. It says plainly: do not delete, alter, or discard, and do not rely on routine retention schedules.

The systems matter as much as the people. Auto-delete on email must be suspended for the custodians. Messaging platforms with disappearing messages must be switched off for those accounts. Departing employees' devices and mailboxes must be preserved rather than wiped.

A hold should be acknowledged in writing and renewed as the matter develops.

What happens when evidence disappears

California does not recognize a separate tort for intentional destruction of evidence by a party to the case. The Supreme Court decided that the existing remedies inside the lawsuit are the better tools. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 11-13, 17.)

The first is the inference. In deciding what inferences to draw, the trier of fact may consider a party's willful suppression of evidence. (Evid. Code, § 413.) The standard jury instruction tells jurors that if a party intentionally concealed or destroyed evidence, they may decide the evidence would have been unfavorable to that party. (CACI No. 204; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.) A business that deleted its emails spends the trial explaining why.

The second is discovery sanctions. Failing to submit to an authorized method of discovery and disobeying a discovery order are misuses of the discovery process. (Code Civ. Proc., § 2023.010, subds. (d), (g).) The court may impose monetary sanctions, issue sanctions deeming facts established, evidence sanctions excluding proof, and terminating sanctions. (Code Civ. Proc., § 2023.030, subds. (a) to (d).) The courts generally reserve the nonmonetary sanctions for violation of a discovery order, with an exception for sufficiently egregious conduct. (New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at pp. 1423-1428.)

The statute protects a party whose electronic data was lost through the routine, good-faith operation of its systems, absent exceptional circumstances. (Code Civ. Proc., § 2023.030, subd. (f)(1).) The same subdivision says it does not alter any obligation to preserve, so the safe harbor does not excuse a failure to suspend routine deletion once the duty has attached. (Code Civ. Proc., § 2023.030, subd. (f)(2).)

The third is criminal. Willfully destroying or concealing a record knowing it is about to be produced in evidence is a misdemeanor. (Pen. Code, § 135.) The firm pursues the civil remedies; the criminal side belongs to the prosecutor.

Federal court

Business cases in the Central District of California follow the federal rule. It applies when electronically stored information that should have been preserved is lost because a party failed to take reasonable steps, and it cannot be restored. The court may then order measures to cure the prejudice. On a finding of intent to deprive, it may instruct the jury to presume the information was unfavorable, or enter a default. (Fed. Rules Civ. Proc., rule 37(e)(1), (2).)

Two situations from business cases

A sales manager resigns and the company, following its usual practice, wipes his laptop and reassigns his mailbox 30 days later. A trade secret claim against him follows, and the strongest evidence of what he took is gone. Our page on accusations of taking company data covers the other side of that case.

A company migrates to a new email platform mid-dispute and the old archive is not carried over. The opposing party does not have to prove intent to argue that the records should have been kept.

How we handle holds

When a dispute reaches us, the hold goes out within days, tailored to the custodians and systems involved. When the other side has lost evidence, we build the record through discovery, including requests about retention practices. Our discovery toolkit explains those tools. When a non-party holds the evidence, a subpoena reaches it, and our subpoena guide explains that process.

Spoliation disputes are decided by the judge handling the case, in Orange County usually at the Central Justice Center in Santa Ana and in Los Angeles at the Stanley Mosk Courthouse.

What to bring to the first meeting

Bring the demand letter, complaint, or whatever first signaled the dispute, with the date you received it. Bring a list of the people involved and the systems they use for email, files, and messaging. Bring your document retention policy, if you have one, and the auto-delete settings on your email and chat platforms.

Frequently asked questions

What is a litigation hold?

A litigation hold is a written instruction, usually from counsel or management, directing employees and IT staff to preserve all documents, emails, messages, and data that may be relevant to a pending or anticipated dispute. It also suspends any routine deletion that would otherwise destroy them.

When does the duty to preserve evidence begin?

In California the duty begins when litigation is reasonably anticipated, not when a lawsuit is filed. A demand letter, a threat to sue, a notice of claim, or your own decision to sue each trigger it. From that point a business must take reasonable steps to keep relevant evidence from being lost.

What is spoliation of evidence in California?

Spoliation is the destruction, alteration, or failure to preserve evidence relevant to pending or reasonably foreseeable litigation. California addresses it with an adverse inference the jury may draw against the party that willfully suppressed evidence, with discovery sanctions ranging from monetary to terminating, and with a misdemeanor statute for willful destruction of evidence about to be produced.

Can you sue for spoliation of evidence in California?

Not as a separate claim against the opposing party. The California Supreme Court held in Cedars-Sinai Medical Center v. Superior Court that there is no tort cause of action for intentional first-party spoliation discovered before the underlying case is decided. The remedies are the evidentiary inference, discovery sanctions, and criminal penalties, all applied within the existing lawsuit.

What should a litigation hold letter include?

A short description of the dispute and the date the duty began. The categories of documents and data to preserve, and the custodians and systems covered. An instruction to suspend auto-delete and retention schedules. A contact person for questions and a request for written acknowledgment. It should be updated as new custodians or sources come to light.

Talk to a California civil litigation attorney

If your business is facing a dispute and needs to preserve evidence, or believes the other side has destroyed it, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California.

This page provides general information about California law and is not legal advice. Outcomes depend on the evidence, the facts, and the court.