Document Type


Publication Title

Michigan State Law Review


There are now few written federal or state civil procedure laws broadly authorizing pre-suit discovery. Yet with the increasing amounts of electronically stored information (ESI) relevant to future civil litigation, the regularity of ESI loss/destruction, and the growing availability of substantive law claims involving pre-suit evidence spoliation, there is a compelling need for new written laws on pre-suit court orders involving evidence preservation.

Current written civil procedure laws generally authorize pre-suit discovery perpetuating witness testimony via depositions in order to prevent a failure of justice arising because a witness will likely be unavailable later. Fewer procedural laws authorize pre-suit discovery aimed at identifying potential defendants or potential causes of action. Virtually no current civil procedure laws address broader pre-suit court orders involving evidence preservation. They should, moving such orders from the "fringes."

Pre-suit evidence preservation duties generally arise under two types of laws. One embodies post-lawsuit civil procedure laws on discovery sanctions for failure to produce evidence that should have been preserved, but was lost, pre-suit. The other encompasses substantive law claims for damages arising from pre-suit evidence losses.

New written civil procedure laws should authorize pre-suit court orders involving evidence preservation when the requested evidence is relevant to imminent civil litigation and will likely spoil otherwise. These new laws should originate in amendments to current written civil procedure laws on witness testimony perpetuation via deposition and not the laws on discovery sanctions as suggested by Professor A. Benjamin Spencer. New laws should authorize information gathering during pre-suit discovery, as well as pre-suit orders, declaring a lack of any preservation duty where a pre-suit evidence preservation demand has been made, is disputed, and warrants immediate judicial attention. The availability of more expansive pre-suit orders under written civil procedure laws will promote greater uniformity among the trial courts, prompt more informed settlement talks, and enhance accuracy in later litigation factfinding.

First Page


Last Page


Publication Date



College of Law

Suggested Citation

Jeffrey A. Parness & Jessica Theodoratos, Expanding Pre-Suit Discovery Production and Preservation Orders, 2019 Mich. St. L. Rev. 651 (2019).

Included in

Law Commons