Sending a Litigation Hold for a Phone: A Family-Law Template

The short answer

Spoliation is far cheaper to prevent than to sanction. A short, well-aimed preservation letter — sent early — is the single most effective thing you can do to keep the other side's phone evidence from quietly disappearing before discovery. Below is when the duty attaches, the elements a defensible hold must contain, and a copy-usable template you can adapt to your forum. This is informational, not legal advice, and state procedure varies; ground the letter in your jurisdiction's rules.

When the duty attaches

The duty to preserve arises when litigation is reasonably anticipated— which, as Zubulake IV established, can be well before a complaint is filed. At that point a party must suspend routine deletion and impose a hold.

For a family-law matter, the governing standard is your state's preservation rules and the court's inherent authorityto sanction the destruction of evidence — divorce and custody are state-court proceedings. The federal FRCP 37(e) framework is a helpful federal analogfor how courts reason about lost electronically stored information, and the American Academy of Matrimonial Lawyers treats it that way — but it does not directly govern a state-court divorce. Do not premise your client's duty, or your sanctions argument, on Rule 37(e); premise it on the forum's own spoliation law and inherent authority.

What a defensible hold contains

Drawing on the Sedona Conference Commentary on Legal Holds, a hold that will hold up is written, specific, and confirmed. For a phone in a divorce, it should name:

• the matter and the parties;
• the specific devices and accounts — the phone itself, SMS and iMessage threads, photos and their metadata, location data, app and chat data, call logs, and iCloud and Google backups;
• an explicit instruction not to delete, factory-reset, sell, or swap the device, and not to disable backups or auto-delete/disappearing-message settings;
• the legal basis — the forum's preservation duty and spoliation consequences;
• the scope and timeframe of the data to be preserved;
• a request for written confirmation that the hold is in place.

A copy-usable template

Adapt the bracketed fields to your matter and forum. Send it to opposing counsel (or, where appropriate, the self-represented party) and keep proof of delivery.

Re: Preservation of Electronically Stored Information — [Case caption / matter]

Counsel: This letter places your client on notice of the obligation to preserve electronically stored information relevant to the above matter. Litigation is pending or reasonably anticipated, and the duty to preserve has attached under [state] law and the court's inherent authority.

Your client must immediately suspend any routine or automatic deletion and preserve, without alteration: the mobile device(s) in your client's possession or control; all SMS, iMessage, and third-party messaging content; photographs and their metadata; location data; call logs; app data; and all associated cloud backups, including iCloud and Google. Your client must not delete, factory-reset, sell, exchange, or otherwise dispose of any device, and must not disable backups, auto-delete, or disappearing-message features.

Failure to preserve this information may constitute spoliation and subject your client to sanctions under the applicable [state] standard and the court's inherent authority. Please confirm in writing within [X] days that a litigation hold consistent with this letter is in place.

Notice the legal-basis line names the forum'slaw and the court's inherent authority — not the federal rule. Keep it that way.

The lawful-access caution — read this before you advise

A preservation letter tells each side to protect their own data and to demand the other side protect theirs. It neverauthorizes anyone to break into the other party's phone or accounts. Self-help access to someone else's device or cloud account can violate the Wiretap Act (18 U.S.C. § 2511), the Stored Communications Act(18 U.S.C. § 2701, with a $1,000 statutory-damages floor), and the Computer Fraud and Abuse Act(18 U.S.C. § 1030). Evidence gathered that way can be excluded, and it can expose your client to criminal and civil liability. Preserve your own; demand theirs; never break in.

Prevention, then consequences

The hold is the prevention half. When a party ignores it and wipes a phone anyway, the question shifts to sanctions — see spoliation in family law and the sanctions when the other side deletes digital evidence. If you need an examiner to preserve a device defensibly or to prove a wipe happened, our e-discovery services for law firms and digital forensics for divorce pages explain how that works.

Related services

• E-Discovery Services for Law Firms
• Digital Forensics for Divorce and Family Law