Digital Spoliation Is No Longer Hypothetical: Lessons from Recent Sanctions Over Missing Web Content
Last Updated June 2025
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)).
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