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.
Under Federal Rule of Civil Procedure 37(e), sanctions may be imposed when:
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.
(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.
(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.
(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.
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.
To avoid sanctions under Rule 37(e), legal teams must treat digital content with the same rigor applied to emails or corporate documents.
Courts have consistently found that screenshots without metadata or documentation fail under FRE 901 and 1002 (see Edwards).
Despite their convenience, screenshots introduce evidentiary vulnerabilities:
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 was designed for legal professionals who understand that preserving online content is not a technical task — it’s a legal obligation.
Our platform:
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.
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.