Litigation Holds and Record Preservation: What a Board Must Do the Day a Claim Is Threatened

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: Condominiums · HOAs · Cooperatives

The moment an association can reasonably anticipate a dispute, its records stop being a filing question and become an evidence question. Nothing about that is intuitive to a volunteer board, and the failure is almost never deliberate: an auto-delete rule keeps running, a director cleans out an inbox, a manager is replaced and the old files go. This guide sets out what triggers the duty, how to issue a hold that actually works, and what it costs in Florida when records disappear.

What triggers the duty

There is no bright-line rule and Florida courts have been careful about creating one. The Fifth District held in Shamrock-Shamrock, Inc. v. Remark that a third party to litigation owes no common law duty to preserve evidence based on the foreseeability of that litigation alone; such a duty comes from a contract, a statute, or a properly served discovery request. The court expressly reserved the question for parties, and other Florida decisions suggest a party who should reasonably foresee litigation may be held to a preservation duty — so an association looking at its own records should not rest on Shamrock. That is the doctrinal position. It is not a reason for a board to wait.

The practical standard a board should use is reasonable anticipation. Once a reasonable person in the association's position would expect a claim, act as though the duty has attached. The following all qualify.

• A demand letter from an owner's attorney, or a letter that reads like one.
• A demand for presuit mediation under § 720.311(2)(a), or notice that a dispute is headed to arbitration or mediation under § 718.1255.
• A Division complaint, or notice that one has been filed.
• A records request from an owner who is clearly building a case, particularly one sent by certified mail.
• A notice of claim, a reservation of rights letter, or an examination under oath demand from an insurer.
• An engineering or milestone inspection report identifying a defect, or a contractor asserting that another party's work caused damage.
• Any injury on the property, any construction failure, and any event the board discusses in terms of who is at fault.
• Service of a subpoena, including one directed at the manager.

Notice to a single director is notice to the association. There is no version of this in which the president can hold a demand letter for a month while deciding whether to tell anyone.

Issuing the hold

A litigation hold is a letter, not a conversation at a meeting. It should be prepared with counsel, sent the same week, and kept as part of the association's records.

1. Identify the matter in enough detail that a recipient can recognize a relevant document without being told twice.
2. State the date range and subject matter to be preserved, erring wide. Over-preserving is cheap; under-preserving is not.
3. Instruct recipients to stop all deletion, including emptying deleted-items folders, clearing text threads, overwriting camera footage and discarding paper.
4. Name the specific systems affected: association email, personal accounts used for association business, phones, the management portal, accounting software, the camera and access control system, and any shared drive.
5. Ask each recipient to acknowledge in writing that they received it and have complied.
6. Name one person responsible for collecting acknowledgments and following up on the ones that do not come back.

Send it to every director, every officer, every committee member who touched the subject, the manager personally, the management company as an entity, and the association's accountant. Send a separate preservation letter to vendors whose work is at issue, to the engineer, and to the prior management company if one exists. That last one is often the most important letter in the file and the one boards forget.

What counts as a record

Boards think of documents. Evidence is broader, and the association's own statutes are already broader than most directors realize. The catch-all in § 718.111(12)(a)21. covers all other written records of the association relating to its operation, and Chapter 720 has the same construction. A board member's text message about a leak, sent from a personal phone, is capable of being both an official record and discoverable evidence.

• Email, in association accounts and in personal accounts used for association business.
• Text messages and chat, including group threads among directors, which routinely contain the candid version of a decision.
• Photographs and video, with their original files intact. Metadata carries the date, and a photograph re-exported through a messaging app may lose it.
• Voicemail, which many phone systems purge automatically.
• Accounting data in native form, not just printed reports.
• The manager's working files: work orders, inspection notes, correspondence, and the log of owner complaints.
• Vendor files: proposals, change orders, daily reports, submittals and the contractor's own photographs.
• Access control and camera logs, which usually have the shortest retention of anything on the list.
• Drafts and superseded versions, which are not privileged merely because they are drafts.

Our guides on board email and text messages and electronic records management cover the systems side. The point for a hold is that every one of those categories has to be named in the letter, because recipients preserve what they are told to preserve and nothing else.

Spoliation in Florida and what it costs

In Martino v. Wal-Mart Stores, Inc., the Florida Supreme Court held that there is no independent cause of action for first-party spoliation, meaning a party cannot sue its opponent in the same case for destroying evidence. Boards sometimes hear that as good news. It is not. The court's reasoning was that existing remedies are adequate, and those remedies are applied against the party that lost the evidence.

The Valcin presumption has prerequisites the table row cannot carry. It applies only where the records are missing or inadequate through the defendant's negligence. And the Court required a threshold showing: "a plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case." What the presumption then supplies is negligence in the underlying conduct. It does not establish whatever the missing record would have shown.

Read the safe harbor carefully, because boards misread it in a predictable way. It protects loss through routine, good faith operation of a system. Once a hold obligation has attached, continuing to run an auto-delete rule is no longer routine and is difficult to call good faith. The rule protects the association that had a sensible retention policy before anything happened; it does not protect the association that left the policy running afterward.

The management company and the vendors

Most of the association's records are in someone else's custody. That does not move the preservation obligation, and it creates a second problem: the management company and the vendors are potential third-party spoliators, which means their destruction can hurt the association without giving the association an easy remedy.

Write to the management company as an entity, not just to the manager. Ask specifically that the portal, the accounting system, the email accounts of any staff who worked on the community, and the work order history be preserved, and that any account-deletion or archive-purge schedule be suspended. If the association is in the middle of a transition, say so and ask for a written confirmation that nothing will be deleted on termination. Our management agreement review guide explains why the transition clause should already require this.

For vendors, send the preservation letter with the first notice of a claim, not after the dispute develops. Contractors and engineers cycle project files out on their own schedules, and the daily reports and field photographs that decide a construction case are usually the first things to go. Where the association is pursuing a construction claim, coordinate the letters with counsel so the scope matches the theory of the case. See our guide on major project oversight for the records a board should be generating during the work, which is the cheapest form of preservation there is.

Living with a hold

Holds last longer than boards expect, and they have to survive events that would otherwise disturb the records. Three of those recur.

An election. Directors leave and § 718.111(12)(f) and § 719.104(2)(e) require them to relinquish all official records in their possession or control within 5 days. A departing director under a hold needs a specific instruction: turn over the association's records, and do not delete anything from a personal account. Those two instructions conflict in the recipient's mind unless the letter explains them. Our post-election transition guide covers the handoff generally.

A manager change, covered above. And an insurance examination or a request from the carrier, where the association is producing material to its own insurer. Coordinate that production with counsel; what goes to a carrier is not automatically outside the association's privilege, and what is said in an examination under oath is evidence.

Re-send the hold annually, or whenever the board composition changes. A hold that was issued to a board that no longer exists is not a hold.

Lifting the hold

Holds should end deliberately, in writing, and only on counsel's confirmation that the matter is concluded and no appeal, related claim or statutory period remains open.

1. Get written confirmation from counsel that the matter is closed for preservation purposes.
2. Send a release notice to everyone who received the hold, stating that the hold is lifted and the date it is lifted.
3. Confirm before releasing anything that the material is not subject to another hold, and that the statutory retention floors in § 718.111(12)(b), § 719.104(2)(b) or § 720.303(5)(a) still permit disposal.
4. Restore suspended auto-delete and archive settings deliberately, and note the date they were restored.
5. Keep the hold letter, the acknowledgments and the release notice permanently. They are the association's proof that it behaved reasonably.

That last step matters more than the rest of the sequence combined. If the association is ever accused of losing evidence, the documented hold is the defense. A board that can produce a dated letter, a list of recipients, signed acknowledgments and a record of which systems were suspended is in an entirely different position from a board explaining that it meant to.

For community association managers: see The association received a demand letter or lawsuit: what does the manager do in the first 48 hours? in the Manager Resource Center.

Contact Hamilton Mikes

Hamilton Mikes prepares litigation holds and preservation letters for association boards in Lee, Collier and Charlotte Counties, coordinates preservation with management companies and vendors, and advises boards on records already at risk. Call 239-594-7227 or visit our Litigation and ADR page.