Preserve evidence (North Carolina)

The duty to preserve

The duty attaches when litigation is reasonably anticipated — before any complaint is filed. It runs to documents, tangible things, and electronically stored information within a party's possession, custody, or control, and it is the foundation every later discovery fight stands on.

Common-law doctrine — case anchors, verify before citing

Spoliation — the adverse-inference doctrine

North Carolina's remedy runs through the adverse-inference instruction and the court's sanction powers (Rule 37 for order violations): destruction or nonproduction of relevant evidence can support the inference that the evidence was unfavorable to the party who lost it. Intent, notice, and prejudice drive what a court does — that calculus is legal judgment.

Common-law adverse-inference line — anchors, verify before citing · G.S. 1A-1, Rule 37 (order-based sanctions)

ESI is in the rule's own text

Rule 26(f)'s discovery-meeting machinery names the discovery of electronically stored information expressly — ESI planning is a first-class subject of the 40-day meeting and any court-ordered discovery plan, not an import from federal practice.

G.S. 1A-1, Rule 26(f)

The litigation-hold checklist

1. 01

   Identify the trigger date — when litigation became reasonably anticipated (document why).

2. 02

   Scope the sources: custodians, devices, email, messaging, cloud accounts, vehicle/premises data, paper.

3. 03

   Suspend auto-deletion and routine destruction for the scoped sources — in writing.

4. 04

   Issue the written hold to every custodian; record acknowledgments.

5. 05

   Preserve metadata — do not open/edit originals; image where practical.

6. 06

   Calendar re-issuance and compliance checks; log everything (the record IS the defense).

7. 07

   Third parties: send preservation letters where evidence sits outside your control.