Third Party Had No Duty to Preserve
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February 17, 2026The duty to preserve is triggered when a potential litigant reasonably anticipates litigation. More than a mere dispute is required, and the test is objective.
What about third parties?
“Generally, the duty to preserve extends to documents or tangible things … by or to individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses…. This duty may extend to a non-party to a proceeding when there is a special relationship involving the non-party or when the non-party enters into an agreement to preserve the evidence sought to be obtained.” St. v. Christ, 2025 WL 3453338, at *1 (W.D. La. Dec. 1, 2025), reconsideration denied, 2025 WL 3623319 (W.D. La. Dec. 12, 2025).
“With respect to third parties, the general rule is that absent some special relationship arising from agreement, contract, statute, or other special circumstance, the duty to preserve evidence applies only to parties to the litigation, not nonparties.” Rains v. Westminster Coll., 2023 WL 2894506, at *5 (D. Utah Apr. 11, 2023)
“The duty to preserve does not generally apply to non-parties to the litigation unless ‘some special relationship or duty arising by reason of an agreement, contract, statute, or other special circumstance’ counsels in favor of an exception.” Johns v. Gwinn, 503 F. Supp. 3d 452, 462–63 (W.D. Va. 2020).
However, a party or potential party should preserve information that is within its possession, custody, or control, and that information may be in a third-party’s hands. Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022); Possession, Custody, or Control – Part II (Oct. 27, 2023); Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025); “Possession, Custody, or Control” of State Agency Documents by State Attorneys General? (Sep. 3, 2025); Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024); The “Practical Ability” Standard for “Control” in Maryland (Dec. 11, 2020)
