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Two New Cases Further Define the Duty to Preserve Evidence

101 Illinois Bar Journal 152, March 2013

3 Pages Posted: 16 Mar 2013  

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: March 15, 2013


The general rule in Illinois is that there is no prelawsuit duty to preserve evidence. However, a duty can arise through an agreement, a voluntary undertaking to preserve, a statute, or a “special circumstance.” Where a duty arises, it requires preservation of evidence if a reasonable person in that position “should have foreseen that the evidence was material to a potential civil action.” Breach of this duty can lead to a sanction in a later civil action or to a tort claim in negligence. Such a tort claim may be pursued against one (like an insurer) who would not otherwise be a defendant.

Recently both the Illinois Supreme Court and the Illinois Appellate Court ruled on the voluntary undertaking and “special circumstance” exceptions. The rulings shed some light on the pre-lawsuit duty to preserve, but difficult questions remain.

As to voluntary undertaking, the courts focused on whether something significant was done to facilitate the continued existence of the evidence which demonstrated an affirmative acknowledgment or recognition of a duty to preserve. Thus, small-scale evidence preservation, especially if arising out of contract (as with insurance), prompts no duty to preserve.

As to “special circumstances,” the courts deemed a request to preserve evidence is key, though such a request alone is often insufficient, as when there is no preexisting relationship between the requester and the evidence holder. The duty will less likely arise where the requester had “reasonable” or “adequate” opportunity to inspect the evidence before it was lost (as with a sidewalk), or the evidence holder’s destruction of the evidence served a “strong public policy” (as with demolition of a condemned building).

Keywords: discovery, spoliation of evidence, duty to preserve evidence, evidence preservation, fact investigation, professional responisibility, legal ethics, preservation letter

Suggested Citation

Parness, Jeffrey A., Two New Cases Further Define the Duty to Preserve Evidence (March 15, 2013). 101 Illinois Bar Journal 152, March 2013. Available at SSRN:

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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