Before You Hit Delete: When the Duty to Preserve Evidence Begins in Washington
About to clean out your inbox because “there’s no lawsuit yet”? Stop. Your duty to preserve evidence can begin before anyone files a case — and deleting emails at the wrong time can have serious legal consequences.
A duty to preserve evidence means you must not delete, destroy, or alter information that could be relevant to a legal dispute. Destroying evidence — known as spoliation — can result in court-imposed sanctions, including an instruction that permits the jury to presume the destroyed evidence was unfavorable, or even dismissal of your claims.
While Washington does not have a general, free-floating duty to preserve evidence simply because litigation is foreseeable, that obligation can be triggered in several ways, including:
- By contract – Some agreements require the parties to retain certain categories of records.
- By statute or regulation – Certain laws impose record-retention obligations.
- By written demand – A formal request to preserve evidence (often called a “preservation letter”) can place you on notice and trigger the duty.
So, if you are reading this because you were wrongfully terminated, injured in a car accident, or believe you were the victim of fraud, you should strongly consider taking affirmative steps to gather and secure relevant evidence now. And “relevant” covers more than many people expect. Under ER 401, evidence is relevant if it has any tendency to make a fact of consequence more or less probable.
These principles apply to the other side as well. If you are planning to bring a claim, consider sending early preservation letters to anyone who may control relevant evidence. That is often a good time to retain an attorney.
When a duty to preserve is violated, Washington courts evaluate sanctions by looking at factors such as whether the evidence was destroyed intentionally or in bad faith, whether it was central to proving a claim, whether other evidence can fill the gap, and whether its loss unfairly disadvantages the other party. Even if the Court doesn’t sanction you, destroying evidence could still hurt your case as the other party may be allowed to question you about it in front of the jury.
The bottom line: do not wait for a lawsuit to begin preserving evidence. And if you believe the other side may destroy relevant materials, act quickly to put them on written notice to preserve. If you expect to be involved in litigation, early strategic guidance can make a meaningful difference. An experienced attorney can help you. At Beresford Booth, our attorneys are experienced in every step of the litigation process.
To learn more about Washington’s Duty to Preserve Evidence, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.