Extract from Page Vault’s article “Digital Spoliation Is No Longer Hypothetical: Lessons from Recent Sanctions Over Missing Web Content”
Attorneys understand the duty to preserve evidence under common law and the Federal Rules of Civil Procedure. But in today’s digital environment, dynamic web content — websites, social media, ephemeral communications — presents an especially volatile category of electronically stored information (ESI). A Terms of Service page can change without notice. A tweet can disappear overnight. If these losses occur after the duty to preserve arises, courts are no longer hesitant to impose significant sanctions (see Fed. R. Civ. P. 37(e)).
This post highlights how courts are applying Rule 37(e) to modern web evidence, what that means for legal teams, and how to meet judicial expectations for defensible digital preservation.
Rule 37(e): The Legal Standard Governing Digital Spoliation
Under Federal Rule of Civil Procedure 37(e), sanctions may be imposed when:
- ESI that should have been preserved is lost;
- Reasonable steps were not taken to preserve it;
- It cannot be restored or replaced; and
- The loss prejudices the opposing party or was intentional (Fed. R. Civ. P. 37(e)(1)–(2)).
These criteria apply to all ESI — including public-facing online content. Courts have increasingly applied this rule to the loss of website pages, deleted social media posts, and auto-deleting messaging when parties fail to act quickly and defensibly.
