[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

“Plaintiff True Footage Inc. asks the Court to enter an order directing Defendants Automax AI Inc., Automax AI (US) Inc., and Humza Ahmed to preserve evidence. The Court denies Plaintiff’s request.” True Footage Inc. v. Automax AI Inc., 2026 WL 3062143 (N.D. Cal. Oct. 13, 2026).

The court wrote: “The parties generally agree that courts considering a preservation order should assess (i) the degree of concern that evidence will be destroyed, (ii) the risk of irreparable harm to the requesting party, and (iii) the preserving party’s capability to maintain the evidence in question.” Id. at *1.

True Footage asserted a right to a preservation order because allegedly “this case involves ‘young people without litigation experience,’ and (ii) … Defendants haven’t responded in enough detail to its inquiries about the specific preservation measures Defendants are taking.” Id. 

That was insufficient for two reasons. First, plaintiff provided no authority showing that it was entitled to “specific assurances.” Second, “Defendants are represented by experienced counsel, have assured Plaintiff they intend to take steps to preserve evidence and follow applicable law, and have stated their willingness to negotiate an ESI protocol in good faith.” Id. The court held: “Plaintiff’s request is denied, without prejudice to its renewal if a legitimate basis for a protective order arises.”

While I agree with the court’s description of the applicable test, I disagree a bit with its rationale. Fed.R.Civ.P. 26(f) states topics that “the parties must consider” in a conference of the parties a/k/a a “meet and confer.” One of them is to “discuss any issues about preserving discoverable information….” Further, the “discovery plan” developed by the parties should address “any issues about… preservation of electronically stored information….” Fed.R.Civ.P. 26(f)(3)(C). The defendants’ “willingness to negotiate an ESI protocol” may miss this mark. See An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

However, in all events, it is important to apply the correct standard to a request for a preservation order. However, there are a number of formulations.

The preliminary injunction standard is sometimes mistakenly applied. A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026). 

Some courts, like True Footage, apply a three-prong test in which the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence. Id.

Another test is whether the party seeking preservation can demonstrate both that an order is necessary and not unduly burdensome. Id.

See generally:

• Request for Preservation Order Denied Under the “Cry Wolf” Doctrine (May 31, 2026);
• Motion to Compel Preservation of RAM Denied Without Prejudice (Aug. 7, 2025).
• Failed Request for a Preservation Order (Jul. 2, 2022);
• Requests for a Preservation Order (Mar. 7, 2022)(“Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”).

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