No Duty to Respond to Preservation Letter
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September 28, 2025The ESI holding in Simms Showers LLP v. Jones, 2025 WL 2723558 (D. Md. Sep. 24, 2025)(Abelson, J.), is pretty straightforward.
The recipient of a preservation demand is not obligated to respond. The Court wrote:
Finally, Mr. Jones also alleges that sanctions are in order because he has “serious spoliation concerns.”… His argument seems to be that he served a preservation notice on Simms Showers but it has not “confirmed that it is honoring its standard litigation-hold obligations.” … But he has not identified any basis to believe Simms Showers is not complying with its preservation obligations.
For these reasons, the motion for sanctions … will be denied.
A party seeking sanctions under Fed.R.Civ.P. 37(e) or otherwise must support the motion with facts. Not responding to a preservation demand is insufficient to support a sanctions motion.
That said, it may be prudent to respond. See Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands (Jan. 29, 2021); Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout (Jun. 4, 2022).
