DISCLAIMER: THE INFORMATION CONTAINED HEREIN IS SOLEY FOR EDUCATIONAL PURPOSES. IT IS NOT LEGAL ADVICE OR LEGAL AUTHORITY AND IS ONLY THE AUTHOR’S INTERPRETATION OF EMPLOYMENT LAW AND THE PRESERVATION OF EVIDENCE.
When workplace disputes escalate into formal claims, one of the first issues that arises is the preservation of evidence. Emails, text messages, personnel files, surveillance footage, and even social media posts may all become central to proving (or defending against) allegations of discrimination, harassment, retaliation, or wrongful termination. Once a party reasonably anticipates litigation, the law imposes a duty to preserve all relevant information. Failing to do so—whether intentionally or through neglect—can have serious consequences.
Litigation Holds: The First Line of Defense
A litigation hold is an internal instruction to preserve documents, data, and other information that may be relevant to a pending or threatened lawsuit. For employers, this usually means suspending automatic deletion policies, securing backup systems, and notifying managers, HR staff, and IT teams of their obligations. For employees, it can mean saving text messages, emails, or even physical notes. Courts look closely at whether a party acted promptly in issuing and enforcing a litigation hold. In Franklin v. Howard Brown Health Center (N.D. Ill Oct 4, 2018), one of the most cited employment cases on this topic, the court held that counsel has an affirmative duty to oversee compliance with a litigation hold and ensure relevant information is actually preserved.
Nebraska law places a clear obligation on both employers and employees to preserve relevant evidence. This includes emails, personnel files, electronic documents, surveillance footage, and physical notes. Failure to honor this duty can trigger serious consequences. Under Nebraska precedent, courts may impose an adverse inference—an instruction allowing fact-finders to assume that destroyed or lost evidence would have been unfavorable to the party responsible for its loss—but only when intentional misconduct is established. In McNeel v. Union Pacific Railroad Co., the Nebraska Supreme Court emphasized that only intentional destruction of evidence yields such an inference, not routine or inadvertent loss. Similarly, in Richter v. City of Omaha, the Court stressed that for a spoliation inference to apply, the party must demonstrate that the destruction reflected fraud or a desire to suppress the truth—routine document destruction is insufficient.
What is Spoliation?
Spoliation occurs when evidence is destroyed, altered, or lost when a party had a duty to preserve it. Courts take spoliation very seriously under Federal Rule of Civil Procedure 37(e) and Nebraska Discovery Rule §6-337(e), which specifically governs electronically stored information (ESI). These rules allow courts to impose measures ranging from requiring additional discovery to instructing the jury that it may presume the lost evidence was unfavorable.
Consequences of Failing to Preserve Evidence
The consequences of spoliation can be case-altering. In Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Sec., LLC (S.D.N.Y. 2010), the court found that failure to issue a timely litigation hold was, at a minimum, gross negligence. Sanctions may include monetary penalties, exclusion of testimony, adverse inference jury instructions, or in extreme cases, dismissal or default judgment. In employment cases—where disputes often hinge on credibility and digital communications—an adverse inference instruction can tilt the entire case.
Nebraska courts have not recognized spoliation as a standalone tort—but sanctions remain powerful tools. The typical remedy is an adverse inference, and in extreme or highly prejudicial cases, courts may grant summary judgment or judgment as a matter of law. Importantly, recent developments under Nebraska civil procedure have codified spoliation-related rules: the updated discovery rule §6-337(e)—aligned with Federal Rule 37(e)—instructs courts to assess whether (1) relevant electronically stored information (ESI) should have been preserved, (2) reasonable steps were not taken to preserve it, and (3) it cannot be restored or replaced. Sanctions under §6-337(e) must be proportionate to cure any prejudice—but intentional withholding may warrant harsher measures, such as adverse inference instructions.
Case Spotlight: Disposal of a Laptop Hard Drive
A recent illustrative case is Clayton Int’l, Inc. v. Neb. Armes Aviation, LLC (D. Neb., 2025), where the defendant discarded a malfunctioning laptop hard drive after litigation had been anticipated. Although the court found that the defendant had an affirmative duty to preserve evidence and failed to meet it, the judge concluded there was no bad faith or intent to suppress. As a result, the court granted only monetary sanctions (attorney fees and costs), rather than applying an adverse inference instruction.
The Bottom Line
Whether you are an employer or an employee, the preservation of evidence and litigation preparedness, is not optional, but best practice and a legal obligation. If you suspect a workplace dispute may escalate, take immediate steps to secure relevant information. Employers and employees alike must treat preservation with urgency and care. Failure to act—notably out of convenience—can weaken your case, damage credibility, and lead to costly sanctions. Consult with experienced counsel about issuing or complying with a litigation hold, and never assume routine deletion policies will protect you. As courts have made clear, losing evidence can mean losing your case.
Key Takeaways for Nebraska Employers & Employees
Litigation Holds are Vital: As soon as litigation is reasonably foreseeable, issue and enforce a written litigation hold. Notify HR, legal, IT, and any affected employees—clearly suspend normal deletion or auto-purge protocols.
Document Everything: Maintain audit trails and communications that show you took preservation seriously—even routine retention policies are not excuses once litigation is anticipated.
State Law Standards Are Clear: Nebraska requires intentional misconduct for spoliation sanctions—routine deletion or system defaults won’t suffice. But failure to act can still lead to adverse consequences.
ESI Removal is Risky: As seen in Clayton, even unintentional disposal without intent may result in sanctions—even if not as severe as an adverse inference, the costs and reputational damage can be significant.
If you have an employment dispute, the law firm of Adams & Sullivan is here to help. Our attorneys have guided both employers and employees on how to preserve relevant evidence.
About the Author
Molly Moberg Miller
Adams & Sullivan, PC, LLO
Ms. Miller has been an attorney since 2004 and worked ten years with Amoni Law Offices, P.C. in Aurora, Illinois prior to moving to Omaha and joining Adams & Sullivan. She was Lead Counsel in arbitrations and mediations for personal injury files, and served as Co-Counsel for a large, regional bank conducting commercial and residential foreclosure litigation, and real estate dealings. Her current practice focuses on employment law, non-compete matters, personal injury law and litigation.