Resolving Spoliation Disputes With a Forensic Neutral

When litigation is reasonably anticipated, parties must preserve relevant electronically stored information (ESI). A party that fails to take reasonable steps to do so exposes itself to sanctions under Federal Rule of Civil Procedure 37(e) — up to and including case-dispositive relief. Courts now reject the old “automatic deletion” excuse, distrust self-collection, and increasingly allow discovery into the preservation process itself. A forensic neutral operationalizes preservation, maintains a defensible chain of custody, and resolves spoliation disputes credibly and efficiently — without each side’s partisan experts talking past one another.

When the duty to preserve attaches

Spoliation is the intentional or negligent destruction, alteration, or failure to preserve relevant evidence. The duty does not wait for a complaint to be filed. It can attach on a demand letter, a preservation notice, or simply an internal awareness that litigation could reasonably follow. Once that trigger occurs, routine document destruction that touches relevant material must stop, and the party must take affirmative, reasonable steps to capture what it controls.

What FRCP 37(e) actually requires

Rule 37(e) is more demanding — and more structured — than many parties assume. Sanctions are available where ESI that should have been preserved is lost, reasonable steps were not taken to preserve it, and it cannot be restored or replaced through additional discovery. From there, the rule branches. Where the loss merely prejudices the opponent, a court may order measures no greater than necessary to cure that prejudice. But for the severe sanctions — an adverse-inference instruction or case-dispositive relief — the movant must show the party “recklessly or intentionally failed to preserve” the ESI.

Reasonableness is contextual. Courts weigh the party’s sophistication, its control over the evidence, its resources, and whether the loss occurred through the routine, good-faith operation of a retention system. Those factors are exactly where a forensic neutral adds value: translating engineering reality into the legal standard, and the legal standard into preservation instructions an IT team can actually execute.

Why modern preservation fails

The technology has outrun the instinct. Texts, WhatsApp, Slack, and Google Chats often auto-delete on rolling windows measured in days. Cloud and social ESI live outside the corporate file share, sometimes outside the company’s direct control. And self-collection — asking custodians to find and keep their own relevant material — is inherently flawed, because the people least equipped to judge relevance are the ones deciding what survives. Compounding the problem, legal holds themselves are increasingly discoverable, so a thin or late hold becomes its own liability.

The case law illustrates the trend (these citations are illustrative and should be confirmed against primary sources). In Safelite Group v. Lockridge (2024), an individual was sanctioned for failing to preserve text messages; ignorance of a 30-day auto-delete setting was rejected as an excuse. In In re Google Play Store Antitrust Litigation (2023), the court drew an adverse inference where ephemeral “history off” chats were left to employee self-preservation. EEOC v. Formel D compelled production of the legal-hold notices themselves. In FTC v. Amazon, preservation policies were probed through a Rule 30(b)(6) deposition. And in Brown v. Tellermate, cloud-hosted ESI was overwritten after a user account was reassigned. The common thread: courts will look behind the production and examine how preservation was managed.

Chain of custody as the defensible backbone

A defensible preservation effort is one that can be proven later. That means recording, for each item, the date and time of capture, the capture method, the responsible custodian, and a hash value that verifies the data has not changed. Court-admissible capture preserves metadata, hash values, and timestamps — for example, through WARC web-archive files or PDF/A. Casual screenshots usually fail Federal Rule of Evidence 901: they carry no metadata, are trivially manipulable, and are often incomplete. A clean chain of custody is the difference between a preservation story a court will credit and one it will not.

How a forensic neutral resolves spoliation disputes

Enter the forensic neutral. The role does both the technical and the legal work that a typical referee cannot. A forensic neutral can draft and monitor the ESI protocol and the legal hold, verify preservation integrity by affidavit or declaration, and resolve the dispute on a neutral record — rather than leaving the court to referee a battle of retained experts. Because the neutral is impartial and technically fluent, the parties get findings they can trust and a process that moves faster than serial motion practice.

Practical takeaways

Three steps prevent most spoliation fights. First, act early: identify the trigger and suspend auto-deletion before relevant ESI ages out. Second, issue a prompt, well-drafted legal hold and a clear ESI protocol — and document both, since they may be produced. Third, in high-risk or technically complex matters, engage a neutral early, while preservation can still be done right rather than reconstructed after the fact. Reasonable steps, taken on a defensible record, are the most reliable defense to a Rule 37(e) motion.

This article is general information, not legal advice, and does not create any engagement. Daniel Garrie’s neutral practice is administered exclusively through JAMS.

Note: The case citations above are illustrative and should be confirmed against primary sources before relying on them.