Request for Preservation Order Denied Under the “Cry Wolf” Doctrine

Courts do not lightly issue preservation orders.  A request for a preservation order was denied in In Re Zeta Global Data Privacy Litigation, 2026 WL 1283618 (S.D.N.Y. May 11, 2026).

Frequently, movants apply an incorrect preliminary injunction standard:

• A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026);
• Motion to Compel Preservation of RAM Denied Without Prejudice (Aug. 7, 2025);
• Failed Request for a Preservation Order (Jul. 13, 2022);
• Requests for a Preservation Order (Mar. 7, 2022).

I describe Zeta as the “cry wolf” doctrine.  The court held that plaintiffs, the movants, seeking a preservation order did not meet their burden of production.

Defendant Dotdash argued it had acted appropriately to fulfill its preservation duty. It asserted that plaintiffs’ requests to disclose its preservation process were not answered because they were premature.

Defendant Zeta argued that the motion was largely moot and that it was really an effort to circumvent an agreed discovery stay that had been entered pending resolution of a motion to dismiss. Zeta disclosed custodial locations, eight custodians and other information.

The Zeta court wrote:

Defendants respond that they confirmed to plaintiffs that they are “aware of [their] obligations” to preserve ESI and “ha[ve] acted accordingly.”…. Absent evidence to the contrary, that answer is appropriately responsive. Zeta has identified for plaintiffs the systems with potentially relevant ESI, the ESI being preserved, and the time period for which such ESI is being preserved…. Dotdash has not furnished these details to plaintiffs, but it too represents that it has been aware of its preservation obligations “since the inception of this matter,” heeded them, and recognized that these exist with or without a court order. [emphasis added].

In denying the request for a preservation order, the court explained the governing standard:

• “At a minimum, the party seeking a preservation order must demonstrate that the evidence is in some danger of being destroyed absent a court order….”
• “Plaintiffs have not shown that here. Mere ‘speculative assertions’ in support of spoliation concerns are insufficient to merit entry of a preservation order…..”
• “Defendants have preservation duties with or without a preservation order. Plaintiffs’ dissatisfaction with defendants’ responsiveness to their communications does not support the inference that there is a ‘substantial risk’ that, absent such an order, relevant ESI may be lost, overwritten, or deleted…..”
• “On the record at hand, there is no basis to distrust defendants’ reassurances that they understand and will heed their obligations to preserve such material.”
  • “Dotdash [stated that it] has been, and remains, keenly aware of its preservation obligations … and has acted accordingly….”
  • “Zeta … provided assurances that it was taking reasonable steps to comply with its … related preservation obligations…. Zeta has repeatedly informed

    laintiffs that … it is complying with its discovery obligations….”

Id. at *2 (cleaned up and reformatted).

A request for a preservation order must be supported with a factual predicate and cite the correct legal standard.

This blog was initially posted on  Electronic Discovery Reference Model.