What operators need to know about litigation holds and evidence preservation

Last reviewed: August 2026 · Psychedelic law changes quickly — verify current status before relying on this page.

Who this is for: Oregon and Colorado service center and healing center operators, owners, and staff handling records when a claim or investigation becomes likely.

The short answer

Once a service center reasonably anticipates a claim or an investigation, it has a legal duty to preserve the records and material that could be relevant, and to stop any routine deletion that would destroy them. This is a litigation hold. The duty often starts before any lawsuit is filed, triggered by a serious incident or a credible threat of a claim. The hardest part for many operators is suspending automatic deletion, such as disappearing messages, email purges, and overwritten security footage, because losing evidence that way can lead to court sanctions even when no one meant to destroy anything. Destroying records out of fear of exposure is the worst response, because it turns a defensible position into obstruction.

What a litigation hold is

A litigation hold is a step an organization takes to preserve information that may be relevant to a dispute or investigation. It suspends the normal handling of records, including the routine deletion, the document-retention schedules, and the automatic purges, for anything that could be relevant, and it tells the people who hold that information to keep it. The hold is how an organization meets its legal duty not to let relevant evidence disappear once it knows a legal matter is coming.

When the duty to preserve starts

The duty to preserve does not wait for a lawsuit to be filed or served. It arises when litigation or an investigation is reasonably anticipated, which can be the moment a serious incident occurs, a participant or family signals an intent to sue, a complaint comes in, or the regulator opens an inquiry. For a service center, a death or a serious injury during services is the kind of event that triggers the duty on its own, before anyone has been contacted by a lawyer. Recognizing the trigger early is the operator’s responsibility, and waiting for formal notice is a mistake.

What has to be preserved

The scope is broad: anything that could be relevant to what happened. For a service center, that usually includes the participant’s intake and screening records, the consent and waiver documents, the session notes, any audio or video recordings, text messages and emails, internal chat messages, incident reports, security footage, billing records, and the devices and accounts where those live. When in doubt about whether something is relevant, the safer course is to preserve it. Recordkeeping requirements for Oregon and Colorado facilitators covers the records a center already keeps, which form the core of what must be held.

The automatic-deletion trap

The most common way operators lose evidence is by doing nothing while their systems delete it automatically. Disappearing-message settings, email retention rules that purge old mail, and security cameras that overwrite footage after a set period all destroy data on a schedule. Encrypted and ephemeral messaging apps are common in this field, and their disappearing messages become a serious problem the moment a duty to preserve arises. When the duty starts, the operator has to suspend these automatic deletions for the relevant data, or it can be held responsible for the loss even though it was hands-off.

How to put a hold in place

A hold works best as a written instruction. The operator, usually at counsel’s direction, identifies the people who might hold relevant information, including facilitators, staff, and contractors, and tells them in writing to preserve it and to stop deleting it. It identifies where the data lives and suspends the routine purges. It preserves the material in place or collects it where needed, and it documents the steps taken. Telling staff clearly not to delete or clean up anything is part of the hold, because a well-meaning employee tidying up can cause the same harm as deliberate destruction.

Spoliation: what happens if evidence is lost

Losing or destroying relevant evidence after the duty to preserve has arisen is called spoliation, and courts can punish it. The sanctions range from an instruction telling the jury to assume the lost evidence was unfavorable to the party that lost it, to monetary penalties, to barring the party from making certain arguments, to a default judgment in extreme cases. A regulator can treat lost records as its own violation, and intentional destruction of evidence can be a crime. The result is that losing the evidence often hurts the operator more than the evidence itself would have.

Preserving is not the same as disclosing

Holding records does not mean handing them over. Preservation keeps the material intact, while what an operator must then disclose, to whom, and on what terms is a separate question governed by the rules of the proceeding, by privilege, and sometimes by a protective order that guards sensitive information. What facilitators need to know about client confidentiality and data privacy covers the privacy interests that careful disclosure protects. An operator preserves broadly and discloses only what the law requires, through counsel.

The instinct to destroy records is the wrong one

An operator working in a federally illegal field may feel the urge to destroy records when trouble appears, on the theory that less evidence is safer. Once a duty to preserve has arisen, that instinct is the most damaging move available. Destroying records then is spoliation and can be obstruction, and it converts a situation the operator might have defended into one defined by the cover-up. The records that feel risky to keep are usually far less dangerous than the act of destroying them.

When public information may be enough

The duty to preserve and the concept of a litigation hold are well documented, and an operator can learn the basics and build a preservation step into its incident plan before anything happens. Knowing in advance which systems delete data automatically, and how to suspend them, is something an operator can prepare without a lawyer.

When you should speak with a lawyer

When a claim or investigation becomes reasonably likely, a lawyer should direct the litigation hold, because the scope of what to preserve and the steps to take are judgment calls with serious consequences. Counsel can identify the custodians and data sources, draft the hold notice, and make sure the preservation holds up while disclosure is handled separately. For a death or a serious incident, putting the hold in place early, with legal guidance, is one of the steps that most affects how the matter turns out. How to prepare for a complaint, investigation, or legal dispute covers the broader preparation.

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This article provides general legal information, not legal advice, and does not create an attorney-client relationship. Psychedelic law differs by state and changes over time. Consult a licensed attorney in your jurisdiction before acting on anything described here.