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.

Case Law Snapshot: Sanctions Related to Online and Ephemeral Content

Edwards v. Junior State of America Foundation

(E.D. Tex. 2021, No. 4:19-CV-140-SDJ)
The plaintiff deleted his Facebook account after litigation began and attempted to rely on screenshots. The court excluded the evidence under the Best Evidence Rule and authentication standards (see Fed. R. Evid. 1002, 901), finding the screenshots inadmissible and sanctioning the party.
Lesson: Screenshots are not a substitute for authenticated, original digital evidence.

FTC v. Noland

(D. Ariz. 2021, No. CV-20-00047-PHX-DWL)
Defendants used encrypted, auto-deleting apps after the FTC launched its investigation. The court found this was intentional destruction under Rule 37(e)(2) and issued an adverse inference instruction.
Lesson: Use of ephemeral messaging must be curtailed immediately once litigation is foreseeable.

WeRide Corp. v. Huang

(N.D. Cal. 2020, No. 5:18-CV-07233-EJD)
Post-litigation deletion of email accounts and wiping of devices led the court to impose terminating sanctions. The ruling emphasized that even when forensic tools are later applied, delays in preservation can still constitute a Rule 37(e) violation.
Lesson: Prompt action is essential to meet preservation obligations.

Why It Matters: Web Spoliation Threatens Case Integrity

When digital content is lost or mishandled, courts may impose sanctions under Rule 37(e) ranging from adverse inference instructions to exclusion of key evidence or even dismissal. Failure to meet the standards of the Federal Rules of Evidence, such as FRE 1002 (Best Evidence Rule) and FRE 901 (Authentication), can result in entire categories of content being deemed inadmissible.

Reputational damage — for both client and counsel — can extend well beyond the courtroom.

What Courts Expect: A Defensible Web Preservation Strategy

To avoid sanctions under Rule 37(e), legal teams must treat digital content with the same rigor applied to emails or corporate documents.

1. Issue Litigation Holds Immediately

• Extend litigation holds to include websites, social media, and ephemeral content.
  
  
• Instruct custodians to disable auto-deletion and avoid disappearing messages (see FTC v. Noland).
  
  
• Act within 24 hours of reasonably anticipating litigation to preserve content at risk.
  
  

2. Use Court-Admissible Capture Tools

• Avoid browser screenshots or local PDFs that lack metadata or authentication.
  
  
• Use tools or vendors that can:
  
  
  • Capture full-page dynamic content.
    
    
  • Preserve metadata, hash values, and timestamps.
    
    
  • Output in formats such as WARC or PDF/A that support evidentiary standards.
    
    

Courts have consistently found that screenshots without metadata or documentation fail under FRE 901 and 1002 (see Edwards).

3. Maintain Chain of Custody and Documentation

• Record the date/time, capture method, responsible custodian, and hash verification.
  
  
• Be prepared to produce a privilege log, affidavit, or expert declaration to verify preservation integrity (Sedona Principle 14).
  
  

Why Screenshots Are Insufficient

Despite their convenience, screenshots introduce evidentiary vulnerabilities:

• No metadata: Lacks URL, c pture date/time, device/browser details.
  
  
• Manipulability: Easily edited or taken out of context.
  
  
• Fails to authenticate: Without supporting declarations, screenshots rarely meet FRE 901.
  
  
• Incomplete: Dynamic elements (dropdowns, video, infinite scroll) are often omitted.
  
  

These limitations routinely lead to exclusion of evidence under Rule 37(e) and FRE 1002, especially when a more reliable method was available but not used.

Page Vault: Built for Legal Admissibility

Page Vault was designed for legal professionals who understand that preserving online content is not a technical task — it’s a legal obligation.

Our platform:

• Captures authentic, complete web records in admissible formats.
  
  
• Retains metadata, hash values, and timestamps to meet FRE 901.
  
  
• Maintains chain of custody documentation that supports admissibility under Rule 37(e).
  
  

We are trusted by Am Law 100 firms and litigation teams nationwide to deliver preservation workflows that meet the standards of the courts — and reduce spoliation risk.

Don’t Let Weak Web Evidence Undermine Your Case

Courts are increasingly scrutinizing informal or inconsistent digital preservation practices, particularly when more reliable methods are available. Online evidence that cannot meet the standards of Rule 37(e), FRE 901, or FRE 1002 may face exclusion — and in some cases, weaken the overall credibility of a party’s discovery efforts.

To implement a defensible, court-ready preservation protocol for web content, contact Page Vault. We help litigation teams meet their evidentiary obligations with confidence — and without compromise.