What is spoliation, and how do preservation letters prevent it?

Spoliation is one of the few litigation risks that arises from doing nothing. The evidence disappears on an automatic schedule, nobody makes a decision to destroy it, and the sanction arrives anyway. It is also one of the easiest to avoid, which is why courts treat failures unsympathetically.

When does the duty to preserve begin?

When litigation is reasonably anticipated — which is earlier than filing, and often earlier than a lawyer is involved. A demand letter, a serious incident with injuries, an internal report of misconduct, or a termination likely to be contested can all start the clock. The test is practical: at what point did a reasonable person in your position expect a dispute?

What does the duty actually require?

Taking reasonable steps to preserve what is relevant. In practice that means identifying who holds relevant material, telling them to stop deleting it, and — the step most often missed — suspending automatic processes that destroy it. Email auto-purge rules, surveillance overwrite cycles, device reimaging on employee departure and backup rotation all keep running unless somebody stops them.

What sanctions can a Tennessee court impose?

• Adverse inference — the most common and often decisive: the jury may be told it can assume the missing evidence was unfavourable to the party who lost it
• Exclusion — barring the spoliating party from presenting related evidence
• Costs and fees — shifting the expense caused by the loss
• Default or dismissal — reserved for serious, usually intentional, destruction

Tennessee courts consider factors including whether the destruction was intentional, whether the party knew of the duty, the degree of prejudice, and whether a lesser sanction would suffice. Intent is not always required for a sanction, which surprises parties who lost material through an automated process.

What is a preservation letter, and who sends it?

A written notice to a party or a third party identifying specific material, explaining that a dispute exists or is anticipated, and asking that the material be preserved. For a third party — a business with the security camera, a company holding relevant records — the letter is what creates the notice. Before it, they have no obligation to you at all and their systems keep overwriting.

A good preservation letter is specific: what material, what date range, what location or camera, and where to direct questions. A vague demand to 'preserve all relevant evidence' is easy to ignore and hard to enforce.

Why ask for preservation rather than production?

Because preservation is a far smaller request. A business asked to hand over footage may refuse on privacy or policy grounds and require a subpoena. The same business asked simply not to delete something usually agrees, because it costs them almost nothing. Production can follow weeks later through counsel — but only if the material still exists when the subpoena arrives. Preservation first, production second, is the sequence that works.

What should your own side do?

Issue an internal litigation hold at the same time. Identify custodians, tell them in writing to preserve, suspend the automated deletion processes, and document what you did and when. The documentation matters as much as the action: if material is later lost despite reasonable efforts, being able to show the steps taken is what distinguishes an unfortunate gap from sanctionable conduct.