Spoliation and the Litigation Hold

A litigation hold suspends the routine destruction of records once litigation is reasonably anticipated. Spoliation is what a court calls the failure to do it, and the remedy can include an instruction permitting the jury to infer that the missing material would have been unfavorable.

In senior care the item that disappears fastest is video, which overwrites on a cycle measured in days or weeks. Staffing and assignment records for a specific shift are next, followed by the physical equipment involved. The inference a court permits is often worth more to a plaintiff than the evidence itself would have been, because it converts a documentary gap into an adverse fact. Issue the hold in writing the day a demand letter arrives or a serious incident occurs, confirm specifically that the video retention system has been suspended, and record who was told and when. Routine automated destruction is not a defense once the duty has attached.