Duty to Preserve Under Statute and for Criminal Litigation Differed From Common-Law Duty

A “duty to preserve” can be imposed by common-law, statutes, regulations, procedural rules, ethical obligations, or by criminal law.  When it comes to electronically stored information in civil litigation, the common-law duty is usually foremost.[1]

In Cash v. Laurence County, South Carolina, 2026 WL 278825 (D.S.C. Feb. 3, 2026), at least some of the defendants had preservation duties under common-law, a South Carolina statute, and based on a criminal investigation.  They breached their duty; however, the court held that only the common-law duty applied to a motion for sanctions under Fed.R.Civ.P. 37(e).

Ms. Cash alleged that she was sexually assaulted at a county detention center where she was formerly employed.  The South Carolina State Law Enforcement Division (“SLED”) investigated and that led to an arrest and conviction of Mr. Tolliver.  As part of the investigation, SLED seized 15 devices. After conclusion of the criminal matter, they were returned to the detention center.  They were destroyed a year later under the detention center’s information governance policies.

However, prior to that destruction, plaintiff’s counsel sent a preservation letter.  Defendant’s information technology department was not instructed to preserve information and the litigation hold notice was only belatedly communicated to key people.

Defendant made a wholly meritless argument that the preservation letter was not properly served on it. Id. at n.3.  The court held that Fed.R.Civ.P. 4 (service of summons) was inapposite and rejected the assertion.

A number of other issues were decided; however, this blog focuses on only one.

The detention center had a common-law preservation duty.  The court held that it was triggered by the preservation letter. Id. at *6.

The detention center, as a public body, had a statutory duty to preserve evidence for a certain period. Id. at *6, citing S.C. Code Ann. §30-1-10, et seq. The court wrote that defendants failed to do that.

Further, “Defendants were engaged in the related criminal investigation in the years prior to Plaintiff bringing her civil claims, and arguably at least some of the ESI should have been preserved related to that criminal case.”  Id. (emphasis added).

However, the Cash court determined that only the common-law duty was applicable to Ms. Cash’s motion for sanctions under Fed.R.Civ.P. 37(e):

The issue before the Court is not whether Defendants should have preserved ESI in relation to criminal litigation against Tollison or in accordance with state statute, but rather whether Defendants should have preserved ESI because they “reasonably should know that the evidence may be relevant to anticipated litigation” brought by Plaintiff.

Id. (emphasis added).  The court added: “Plaintiff’s Motions are not a trial on Defendants’ recordkeeping.” Id. at n. 5.

The Cash court then analyzed the facts and determined that sanctions were appropriate under Rule 37(e)(1), but not (e)(2).  It also issued a stern warning about future conduct. Id. at n. 5.

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[1] See Michael D. Berman and Alicia Shelton, “The Common-Law Duty to Preserve ESI (Its Trigger, Scope, and Limits) in Maryland State Courts,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 9.