Arizona preservation
Most states leave the duty to preserve to common law. Arizona wrote the ESI duty INTO Rule 37(g) — when it attaches, what “reasonably anticipates” means, and what a court may do about lost information — so the foundation of every later discovery fight is verbatim, loaded text here.
The duty is IN the rule
Rule 37(g)(1): a party or person has a duty to take reasonable steps to preserve electronically stored information relevant to an action once it commences the action, once it learns that it is a party, or once it reasonably anticipates the action's commencement — whichever occurs first. And 'reasonable anticipation' is DEFINED in the rule's own text, not left to case law. A court order or statute may impose further duties.
- Ariz. R. Civ. P. 37(g)(1)
Two-track remedies — cure versus intent
When ESI that should have been preserved is lost and cannot be replaced: on a finding of prejudice, the court may order measures NO GREATER than necessary to cure the prejudice; only on finding the party acted with the intent to deprive another party of the information's use may the court presume the information was unfavorable, instruct the jury to that effect, or dismiss/default. Which track applies — and what it means for your case — is legal judgment.
- Ariz. R. Civ. P. 37(g)
Beyond ESI — common law
For documents and tangible things outside Rule 37(g)'s ESI lane, Arizona spoliation doctrine runs on common law and the court's inherent and Rule 37 powers. Intent, notice, and prejudice drive what a court does — case anchors, verified before citing, never authored.
- Common-law doctrine — case anchors, verify before citing
- Ariz. R. Civ. P. 37 (order-based sanctions)
The litigation-hold checklist
- 01
Identify the trigger date under Rule 37(g)(1) — commencement, learning of party status, or reasonable anticipation, whichever occurred FIRST (document why).
- 02
Scope the sources: custodians, devices, email, messaging, cloud accounts, vehicle/premises data, paper.
- 03
Suspend auto-deletion and routine destruction for the scoped sources — in writing.
- 04
Issue the written hold to every custodian; record acknowledgments.
- 05
Preserve metadata — do not open/edit originals; image where practical.
- 06
Calendar re-issuance and compliance checks; log everything (the record IS the defense against an intent finding).
- 07
Third parties: send preservation letters where evidence sits outside your control.
A checklist is information; scoping a hold for your matter is judgment. What to preserve, and how far, is a call for a licensed Arizona attorney.