What Evidence Should I Save Before Suing?

Why this matters before the first call to a lawyer

A business case is won on documents. Witnesses forget, and juries trust paper and screenshots more than recollection. The weeks before a lawsuit are when evidence is most complete and most at risk: files sit on departing employees' laptops, message threads auto-delete, and the other side, once warned, starts cleaning house. What you preserve now determines what a litigator can prove later, and what the first consultation can accomplish.

This article is about the plaintiff's side: you intend to sue, or think you may. The mirror image, what a business must do when it receives a preservation demand, is covered in what a litigation hold letter requires.

The duty to preserve applies to you too

Texas law imposes a duty to preserve relevant evidence on any party that knows or reasonably should know there is a substantial chance a claim will be filed. The Supreme Court of Texas confirmed the framework in Brookshire Brothers, Ltd. v. Aldridge in 2014. A business that is drafting a demand letter has, by definition, anticipated litigation, so the duty has attached to it. That includes evidence that cuts against your position: the email where your manager agreed to an extension, the text where you said the work was fine.

Plaintiffs who tidy up their files before suing hand the defendant a gift. If the deletion is discovered, and in discovery it usually is, the court can exclude evidence, let the jury hear about the deletion, or in cases of intentional destruction instruct the jury to presume the missing material was unfavorable to you. Keep everything. Your lawyer decides what matters, and privilege protects that analysis, not the underlying documents.

The six categories to gather

1. The agreement, in every form it took

• The signed contract, purchase order, proposal, statement of work or lease, with every exhibit and schedule.
• Every amendment, change order, extension or waiver, signed or not.
• Drafts and redlines exchanged during negotiation, which show what each side understood terms to mean.
• If the agreement was oral or formed by emails and texts, every message that offered, accepted or confirmed terms. How such agreements are proven is covered in whether emails and texts can form a binding contract in Texas.

2. Communications about the deal

Emails, text messages, Teams or Slack threads, WhatsApp, voicemails, meeting notes and calendar entries, from everyone in your company who dealt with the other side. Include internal communications about the deal, not only messages sent to the other party; internal emails that show what you believed and when are often the most persuasive evidence of good faith, and the most dangerous if they say something else.

Collect messages from personal phones used for work. Export threads in a form that keeps dates, sender and recipient. A screenshot is better than nothing; a native export is better than a screenshot.

3. Proof of your own performance

Delivery receipts, signed acceptance forms, time records, inspection reports, photographs of completed work, deployment logs, shipping records, and the invoices you issued with proof they were sent. In a breach of contract case you must prove that you performed or were excused from performing, and this is the evidence that does it. What the elements require is set out in what you have to prove in a Texas breach of contract case.

4. Proof of their breach

The unpaid invoices and the account statement, the returned or defective goods and photographs of them, the missed deadlines against the schedule, the notice you gave and their response, and any admissions: an email saying "we know we are behind" or "we cannot pay this month" is worth more than a stack of your own complaints.

5. Proof of damages

This is the category plaintiffs most often neglect. Gather the records that show what the breach cost: the amounts unpaid, the cost of replacement goods or services with quotes and invoices, lost profits on specific identifiable deals with the documents that show those deals existed and what margin they carried, the extra staff time with time records, and any fees or penalties you incurred downstream. Texas courts require damages to be proven with reasonable certainty, and a spreadsheet prepared after the fact is only as good as the source documents behind it. What is recoverable is its own subject, covered in the guide on damages for breach of contract.

6. Who knows what

Write down, now, the names and roles of everyone with knowledge, on both sides, and what each saw or did. Note who has left your company and how to reach them. Memories are freshest at this point, and a short internal chronology written for your lawyer, marked as prepared for counsel, is the most useful document you can bring to a first meeting.

How to keep evidence usable

• Do not alter originals. Do not annotate, rename, reorganize or "clean up" documents. Make copies to work from.
• Preserve metadata. Electronic files carry creation and modification dates that can prove or disprove a timeline. Copying files to a new drive, converting them to PDF or forwarding emails to yourself can change or strip that information. Where it matters, have IT or a forensic vendor make a proper copy.
• Stop automatic deletion for the mailboxes, chat channels and systems involved, and tell the relevant employees in writing to preserve.
• Secure departing employees' data before devices are wiped or accounts closed.
• Keep physical items: defective products, signed originals, samples. Photograph them with a date reference, but keep the item.
• Log what you collected, from where and when. If authenticity is later disputed, the log answers the question.

Example

Suppose a Plano IT services firm plans to sue a client for $64,000 in unpaid monthly fees after the client canceled early. The firm's owner gathers the signed master agreement and its two amendments, exports the full email history between the account manager and the client's operations director, pulls the ticketing system logs showing every service call completed, and prints the account statement. Then she finds a text thread in which the account manager told the client, three months earlier, "don't worry about the notice period, we'll work something out." She keeps it. In the case, that text becomes the client's main defense, and because the firm produced it rather than hiding it, the firm's lawyer is able to explain it in context and argue it was not a waiver under the agreement's written-modification clause. Had the text been deleted and later recovered from the client's phone, the firm would have been explaining a deletion instead of a sentence.

What you cannot get on your own

Some evidence sits with the other side or with third parties: their internal emails, their accounting records, bank records, a vendor's files. You are not expected to have it before filing. Once suit is filed, Texas discovery rules require each side to make initial disclosures and allow requests for documents, depositions and subpoenas to non-parties. In some situations Texas Rule of Civil Procedure 202 allows a deposition before suit to investigate a potential claim, which is explained in Rule 202 pre-suit depositions in Texas. The point of preserving now is to have your side of the record complete; the lawsuit supplies theirs.

When to bring this to a litigator

Before you send the demand letter, and before anyone in your company starts deleting or reorganizing files. A litigator reviewing the evidence at this stage can tell you whether the claim is provable, what is missing, and what the other side's documents are likely to say. That review shapes the demand letter and the decision whether to file, both covered in how a litigator evaluates a case before filing. Tina Wysk works with Dallas businesses at this stage, turning a file of documents into a case that can be filed and proven.