Preservation Holds for Utah Businesses Facing a Dispute

Under current Utah appellate law, the duty to preserve evidence begins when litigation is pending or reasonably foreseeable. That is an objective inquiry: whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation. When a business reaches that point, preservation is a legal and operational process—not an instruction to collect everything. The organization should promptly identify the claims and defenses, people, date range, systems, and routine deletion practices that may affect relevant information. Counsel and appropriate technical personnel can then define a defensible hold, suspend targeted destruction, and document what was done.

The duty and scope depend on the facts and controlling law. This article is an issue map, not a universal trigger test.

Preservation, collection, and production are separate

Preservation keeps potentially relevant information from being lost or materially changed. Collection copies selected information into a controlled review environment. Production discloses material through a legal process. Treating them as the same task creates avoidable cost and risk.

A business may need to preserve more than it ultimately collects, and collect more than it produces. Privilege, confidentiality, proportionality, relevance, privacy, trade-secret, and court-order questions are evaluated during the process; they are not reasons to let relevant data disappear.

Escalate the trigger to counsel

A filed complaint is an obvious signal, but Utah law does not require a lawsuit to be filed before the duty can arise. Disputes may become reasonably foreseeable earlier through a demand, termination, threatened claim, investigation, failed transaction, internal report, preservation request, or pattern of events. The Utah Court of Appeals applied this objective standard again in Gallegos v. Brewski’s, 2026 UT App 120. Business personnel should not be expected to make a final legal determination without guidance; they should be trained to escalate events that could require preservation.

Counsel should document the known facts, potential claims and defenses, relevant time period, key participants, systems, and reason for the selected scope. As the matter changes, the hold may need to expand, narrow, or end through a documented decision.

Identify custodians and systems together

Key custodians may include executives, employees, former employees, board members, accountants, agents, contractors, vendors, and other people with relevant information. Systems can include:

• business email and calendars;
• messaging, collaboration, and videoconference platforms;
• cloud drives, shared folders, and document-management systems;
• accounting, payment, CRM, HR, project, and transaction platforms;
• phones, laptops, desktops, removable media, and backups;
• security cameras, access systems, vehicles, and connected devices;
• paper files and physical items; and
• personal accounts or devices used for business, subject to lawful access and privacy limits.

The custodian interview should identify where people actually worked, not merely where policy says they should have worked.

Suspend targeted routine deletion

Routine systems may auto-delete email or chat, rotate video, overwrite logs, expire cloud versions, wipe departing employees’ devices, or recycle backups. A hold should address the relevant deletion mechanisms with the personnel who can implement and verify the change.

Utah Rule of Civil Procedure 37 states that the rule does not limit a court’s inherent authority when a party violates a duty by destroying, concealing, altering, tampering with, or failing to preserve documents, tangible items, electronic data, or other evidence. The rule also contains an exceptional-circumstances limitation for ESI lost through routine, good-faith system operation. That limitation is not permission to continue ordinary deletion after a preservation duty requires action.

Give recipients an understandable hold

A useful notice explains the matter in neutral terms, the relevant subjects and time period, the types and locations of information to preserve, the deletion or alteration that must stop, who can answer questions, and how to acknowledge compliance. It should not direct employees to decide relevance from a narrow personal view or send material through insecure channels.

Track issuance, acknowledgment, reminders, departures, role changes, new custodians, and changes in the dispute. Interview people who manage systems and departing personnel before access, devices, or accounts are changed.

Preserve authenticity and context

Screenshots and PDFs can be useful review copies, but they may omit metadata, hidden fields, formulas, version history, attachments, threads, permissions, and original format. Do not overwrite the only native file with a converted copy. Preserve the system and context needed to evaluate authenticity and completeness.

If forensic collection is warranted, use a qualified protocol. Self-directed copying can alter timestamps, miss cloud content, expose privileged/private information, or create an incomplete record that is difficult to defend.

Coordinate competing obligations

Preservation can intersect with privacy, employment, healthcare, financial, regulatory, cybersecurity, contractual, and records-retention duties. A litigation hold does not authorize entry into an account the company does not control or indiscriminate copying of protected information.

Counsel, IT, security, HR, records personnel, and business leadership may need a defined allocation of responsibility. Protective orders, access limits, logging, encryption, and staged collection can preserve relevant evidence while controlling unnecessary exposure.

Monitor, document, and close deliberately

Preservation is not complete when the first email is sent. Confirm technical suspension, follow up with custodians, preserve new sources, and review the scope as pleadings, discovery, settlement, or business facts change. When the matter ends, counsel should make and document the release decision. Do not silently lift a hold because activity slows.

Mountain State Attorneys assists Utah businesses with disputes, contracts, owner conflicts, and outside general-counsel needs. Review civil litigation, business-owner disputes, business and transactional law, or contact options.

This article provides general information, not legal advice. Controlling law and available options depend on the facts, date, forum, and jurisdiction of a particular matter.