Duty to Preserve
The legal obligation to identify, retain, and protect records and other information that are relevant—or reasonably anticipated to be relevant—to actual or foreseeable litigation, investigation, or audit, so they are not altered, lost, or destroyed.
Duty to preserve is the obligation, rooted in common law and procedural rules, to safeguard potentially relevant information once a party knows litigation, an investigation, or an audit is pending or reasonably foreseeable. It is the trigger that converts routine recordkeeping into a deliberate preservation posture and is the legal basis for issuing a litigation hold.
The duty matters because failing to meet it can lead to spoliation findings, adverse-inference instructions, or sanctions—even when the loss was accidental rather than deliberate. It typically suspends normal disposition: records that a retention schedule would otherwise authorize for destruction must be held until the matter resolves.
A key distinction is between obligation and mechanism. The duty to preserve is the underlying responsibility; a litigation hold (or legal hold notice) is the operational instrument an organization uses to satisfy it. The duty also reaches broadly—encompassing electronically stored information such as email, chat messages, and metadata—not just paper files, which is why organizations must scope custodians and data sources carefully when the obligation attaches.