A regional HVAC company gets a letter from a commercial client's lawyer: the rooftop install failed, the client wants damages, and a lawsuit is coming. The owner files the letter in a drawer and keeps running the business exactly as before. The email system keeps auto-purging messages after 90 days. When the project manager quits, IT wipes and reissues his laptop. By the time the complaint lands, the most relevant months of email and the manager's files are gone.
Now the fight is not about whether the install failed. It is about why the evidence vanished. That is spoliation, and in Florida it can cost you the case before a jury ever hears the facts. After 30 years of litigation and document work, these are the five litigation-hold mistakes I see most often — and how to avoid each one.
Mistake 1: Waiting for the lawsuit to be filed
The single most expensive misconception about preservation is that the duty starts when you get sued. It does not. The duty to preserve is triggered when litigation is reasonably anticipated. A demand letter, an explicit threat to sue, a serious workplace incident, an internal complaint of wrongdoing — any of these can start the clock, often months before a complaint is filed.
That is the window in which most evidence is lost, precisely because nobody has been told to stop the normal churn of deletion. The moment a reasonable business would foresee a claim, preservation obligations attach. In the HVAC example, the duty began the day the demand letter arrived — not the day the summons showed up. The gap between those two dates is where the case was quietly damaged.
Mistake 2: Leaving auto-delete and retention purges running
Modern systems are built to destroy data on a schedule. Email retention policies purge messages after 30, 60, or 90 days. Backup tapes rotate. Chat platforms auto-expire messages. Voicemail systems overwrite. These features are good business hygiene right up until the moment a preservation duty attaches — at which point they become an evidence-destruction machine running on autopilot.
A defensible hold requires affirmatively suspending automated deletion for the relevant custodians and data sources. That is not a casual IT request. It has to be documented: who was told, when, what was suspended, and what was preserved. Courts distinguish between good-faith operation of a routine retention policy and the failure to suspend it once a duty attaches. The second one is where sanctions live.
Mistake 3: Relying on a verbal hold instead of a written notice
"I told everyone to hang onto their emails" is not a litigation hold. A defensible hold is a written notice — a litigation hold letter — that identifies the matter, describes the categories of information to preserve in plain terms, names the systems and devices in scope, tells recipients exactly what not to do, and requires acknowledgment.
The written notice does two things. It actually communicates the obligation to the people who control the data, and it creates the record that later proves you acted in good faith. When opposing counsel moves for sanctions, the written hold — with dated acknowledgments — is often the difference between "reasonable steps were taken" and "the company did nothing." A verbal instruction leaves you with no proof of either the instruction or its scope.
Mistake 4: Forgetting custodians and modern data sources
A hold that covers only the company email server is a hold aimed at 2005. Relevant evidence now lives across text messages, Slack and Microsoft Teams channels, personal phones used for work, shared drives, project-management tools, CRM notes, and the laptops of departing employees. Miss a custodian or a platform and you have a gap — and gaps look like concealment even when they are just oversight.
Two categories get missed constantly. The first is departing employees: the moment someone gives notice, their devices and accounts should be preserved before IT recycles them. The second is personal devices and third-party platforms, where business communication increasingly happens outside any system the company formally controls. A proper hold starts with a deliberate map of who the custodians are and where their data actually lives — before anything is collected.
Mistake 5: Issuing the hold and never following up
A litigation hold is not a one-time email you send and forget. Cases last months or years. New custodians join. Employees leave. Systems get migrated. A hold issued in March and never revisited is often worthless by the following January because the people and systems it named have changed.
Defensible preservation means reissuing the hold periodically, confirming acknowledgments, catching new custodians as the matter develops, and monitoring that automated deletion stays suspended. It also means releasing the hold only on a deliberate, documented decision once the matter and any appeal window are fully closed — not by quietly letting it lapse. Preservation is a process with a beginning, a middle, and a defined end, and each of those has to be recorded.
Why this matters more than it used to
The volume and fragility of business data have both exploded. Where evidence lives has multiplied, and where it is destroyed on a schedule has multiplied with it. Courts have responded by taking preservation seriously: an adverse-inference instruction — telling the jury it may assume the missing evidence would have hurt you — can be more damaging than the underlying claim. In extreme cases, courts have entered default judgment for spoliation.
The good news is that all five of these mistakes are avoidable with a process that costs a fraction of a spoliation fight. If you want the legal background on how courts are treating document handling and privilege in the AI era, the firm's companion analysis on the questions to ask before privileged documents leave the office is a useful next read. The point is the same across both: how you handle documents before anyone reviews them decides how the case goes.