TCPA Spoliation: What Happens When Call and Text Logs Disappear

Many dialers and texting platforms purge old records on a schedule that doesn’t stop for a demand letter. If electronic records are lost after the duty to preserve begins because the company didn’t take reasonable steps, and they can’t be replaced, a federal court that finds prejudice can order measures to cure it. It can’t presume the lost records were harmful unless the company meant to hide them. The bigger cost can fall on the defense, since those logs can also prove consent and opt-outs.

When does the duty to preserve call and text data begin?

It begins when litigation is reasonably foreseeable, which is often before anyone files a complaint. The Advisory Committee’s 2015 note to Federal Rule of Civil Procedure 37(e) explains that “Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable.”

An earlier lawsuit can count too. In a June 2015 order in Lofton v. Verizon Wireless, a case with TCPA claims in the Northern District of California, the magistrate judge concluded that a debt collector “was on notice of its duty to preserve the documents based on the filing of Plaintiff’s complaint and even the Powell litigation before it.” Powell was an earlier suit against the same collector, so a company sued once over a calling program shouldn’t assume the clock restarts with each new plaintiff.

I’d treat a demand letter about one number as the trigger for that number’s records, and a threatened class action as the trigger for the whole campaign. The scope can be narrowed later by agreement, but data that has rolled off may not be recoverable.

Which records decide a TCPA case, and how long do they last?

Machine logs matter most, and many sit in systems built to purge data automatically. In Lofton, the court wrote that the collector’s “Noble dialer, in particular, was programmed to delete call detail records after two years.” In Wakefield v. ViSalus, Inc., an Oregon federal judge described campaign data in the defendant’s calling system that “was programmed to be automatically deleted after three months.” The defendant disputed whether the system ever stored the call reports the plaintiff wanted.

Texting platforms keep their own message logs and delivery receipts, along with the inbound replies that show whether and when a consumer said STOP. For calls and texts that need consent under the FCC’s rules, those replies matter more since April 11, 2025, when the ten-business-day requirement in 47 C.F.R. § 64.1200(a)(10) took effect. Under it, revocation requests made in any reasonable manner “must be honored within a reasonable time not to exceed ten business days from receipt of such request.”

Consent evidence can be the most fragile. The web-form submission and any third-party consent certificate or session recording may live with a lead vendor, not the seller. Our post on proving TCPA consent at summary judgment covers how those records get into evidence if they still exist.

Vendor chains make it worse. In Perrong v. Sperian Energy Corp., a District of Nevada magistrate judge recounted a defendant’s explanation that its calling partner used a server overseas “that does not keep records longer than 30 to 90 days, depending on whether a sale is made.” A later order in the case called that disclosure “at best, baseless.” The January 2020 order had already rejected the finger-pointing: “The Defendants cannot be permitted to simply point fingers at one another each saying it does not have calling records, when calling records are at the heart of this case.” Carrier records may sit outside the business’s direct control, so identify the carriers and messaging providers early and ask them to hold the data.

What can a federal court do under Rule 37(e)?

The rule sets two tiers, and only intentional loss reaches the severe one. Rule 37(e) applies when electronically stored information “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.”

Under subdivision (e)(1), the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” Under (e)(2), the court may presume the lost information was unfavorable, instruct the jury that it may or must make that presumption, or dismiss the case or enter a default judgment, but “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”

The Ninth Circuit read that intent requirement strictly in Gregory v. State of Montana in September 2024. The court repeated that the required intent “is most naturally understood as involving the willful destruction of evidence with the purpose of avoiding its discovery by an adverse party,” and held that a finding of recklessness “is not enough to authorize the severe sanctions covered by Rule 37(e)(2)” that the trial court had imposed. Gregory also held that the rule “precludes a court from resorting to inherent authority to evade its strictures.”

Don’t overread that. The committee note says that in an appropriate case, (e)(1) measures can include “permitting the parties to present evidence and argument to the jury regarding the loss of information.” I think that’s where a TCPA defendant gets hurt. The same note warns that (e)(1) measures can’t have “the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent,” and a defendant should hold the court to that line.

The rule also helps defendants: the note says it “does not call for perfection.” A prompt written hold and a documented effort to stop auto-deletion are strong evidence of reasonable steps, even if some data slipped through, though a company that calls at volume may be held to a higher standard than an individual.

How have courts handled lost dialer and vendor data in TCPA cases?

In the decisions below, the remedies ran from cost-shifting to jury instructions, and one motion failed on timing.

In Lofton, decided in June 2015 under the law in effect before the current Rule 37(e) took effect that December, the collector still had archived data from its dialers. The court ordered the collector and Verizon to pay their own expert to “reconstruct the archived data” for the missing period. The court found Verizon “has engaged in sanction-worthy conduct by allowing Collecto to destroy the call detail records,” though it declined broader sanctions against Verizon.

In Perrong, the magistrate judge later found that, until the court stepped in, a marketing contractor’s only preservation request to its calling partner was a one-line email: “Please make sure all data from this campaign is saved.” The October 2020 order said the contractor “could not have been more cavalier about ensuring the retention of calling records,” found it negligent, and ordered a rebuttable adverse-inference instruction. That order applied spoliation standards from inherent-authority cases and didn’t apply Rule 37(e), and the claims against that contractor were dismissed by stipulation in late 2021, so no jury ever heard the instruction. After Gregory, a negligence-based adverse inference for lost electronic records is hard to defend in the Ninth Circuit.

Wakefield shows the defense side of timing. The plaintiff learned of the three-month auto-delete in December 2016 but waited until less than two months before the April 2019 trial to seek sanctions, and the court held that “Plaintiff’s motion is untimely” without deciding whether spoliation occurred.

The most recent of these is Barton v. Delfgauw, a March 2025 Western District of Washington order. The court noted the defendants didn’t dispute losing the data “due to a change in systems,” but a pretrial stipulation their counsel signed stated, “The Dialer data was deleted to deprive Barton of the evidence.” The defendants said that line was supposed to come out. Holding them to it anyway, the order provides that if the case reaches a jury, “the jury will be instructed that it may presume the information Defendants failed to preserve was unfavorable to them.” The same order shows the defense side, too. Call recordings kept “in a separate location” surfaced late and, in the court’s words, “call into question the veracity of Plaintiff’s claim.”

Does California state court handle lost evidence differently?

In Cedars-Sinai Medical Center v. Superior Court, the California Supreme Court held “that there is no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant,” where the victim knew or should have known of the loss before trial or another decision on the merits. The court pointed to evidentiary and discovery remedies instead and said, “Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request.” Section 2023 was the Discovery Act’s sanctions provision at the time.

The evidentiary remedy comes from Evidence Code § 413, which lets the trier of fact consider a party’s “willful suppression of evidence relating thereto.” CACI No. 204, in the 2025 edition of the Judicial Council’s civil jury instructions, reads: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” Its directions add that the instruction “should be given only if there is evidence of suppression.”

The Discovery Act also has a safe harbor. Under Code of Civil Procedure § 2023.030(f), “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” The next paragraph says it “shall not be construed to alter any obligation to preserve discoverable information.” I wouldn’t count on that safe harbor for a purge that kept running after a demand letter arrived.

Do recordkeeping rules make lost records worse?

They can, because regulations require some of these records anyway. For calls the FTC’s Telemarketing Sales Rule covers, 16 C.F.R. § 310.5 provides that “Any seller or telemarketer must keep, for a period of 5 years from the date the record is produced unless specified otherwise, the following records relating to its telemarketing activities,” and the list now includes a record of each telemarketing call, though the calling and called numbers, time, duration, and disposition aren’t required for a call a telemarketer places by manually entering a single number. The amendments took effect May 16, 2024. Under the FTC’s April 2024 final rule, “compliance with 16 CFR 310.5(a)(2) is not required until October 15, 2024.” Under § 310.5(c), failure to keep those records “in a complete and accurate manner” is itself “a violation of this part.” For call records only, § 310.5(d) offers a safe harbor to a company that can document procedures, training, and monitoring and show the gap was temporary, inadvertent, and corrected within 30 days of discovery. Our post on the Telemarketing Sales Rule and the TCPA covers who keeps what.

The FCC’s rules have their own record duties. For the abandoned-call limit, § 64.1200(a)(7)(iii) provides that “The seller or telemarketer must maintain records establishing compliance with paragraph (a)(7) of this section.” The Do Not Call safe harbor in § 64.1200(c)(2)(i)(D) requires a company relying on it to show, among other things, that it “maintains records documenting this process.”

The committee note to Rule 37(e) helps here: “the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.” Without its scrub records, though, a company can’t prove the safe harbor.

When a TCPA demand letter or complaint arrives

1. Shut off auto-deletion on the dialer, the texting platform, and any consent tool for the numbers and campaigns at issue, and get written confirmation from whoever made the change.
2. Export the opt-out and internal do-not-call logs, with the date each request came in and the date the number was suppressed.
3. Save the National Do Not Call Registry scrub files and the version dates used for each campaign that reached the number.
4. Send preservation letters to every vendor and lead source that touched the number. Keep the vendor contracts and call scripts, plus any recorded or AI-voice message files.
5. Speak with a lawyer before answering the letter, contacting the claimant, or offering anything to settle.

When a claim involving lost dialer records and texting-platform data is filed as a proposed class action, the firm’s page on defending TCPA class actions in California covers what comes next.

Questions businesses ask about lost TCPA records

Does the plaintiff’s preservation letter decide what we have to keep?

No. The letter shows the company was on notice, but the duty comes from the reasonable anticipation of litigation, not from the letter’s wording. Counsel should set the scope from the claims, write it down, and raise disagreements early.

Do we have to preserve data our texting vendor or lead source holds?

Sometimes, yes. Some courts treat vendor-held records as within a company’s control when it has the practical ability or a contract right to get them. The Perrong court found “there is no doubt that EGC had the practical ability to obtain the documents” from its calling partner, and the Lofton court made Verizon share the cost of reconstructing the missing period from its vendor’s archived data. A prompt written letter to each vendor is the minimum.

Can we keep deleting records for numbers that aren’t part of the claim?

Sometimes the litigation hold can be limited to the claimant’s numbers, but separate retention duties still apply, such as the TSR’s call records and the FCC’s abandonment and Do Not Call records. An individual claim can also become a class claim, and a class claim reaches campaign-wide data. Document any narrowing and get counsel’s sign-off.

Does the consumer have to preserve their phone too?

Yes, though courts may expect less of an individual than of a business. Rule 37(e) applies to any party, including a plaintiff who deletes texts or replaces a phone after deciding to sue. Defendants should ask early, in writing, for preservation of the plaintiff’s devices and call logs. Our post on deposing the TCPA plaintiff covers those questions.

Defending a TCPA case with gaps in the records

If your company is facing a TCPA claim and some call or text data has already rolled off, what you can rebuild from other sources and how well you document the loss usually matter more than the gap itself. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving lost dialer records and texting-platform data. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The federal rule is Federal Rule of Civil Procedure 37(e) and its 2015 Advisory Committee note. The recordkeeping rules are the Telemarketing Sales Rule at 16 C.F.R. § 310.5, as amended by the FTC’s April 16, 2024 final rule, 89 Fed. Reg. 26760, and the FCC’s rules at 47 C.F.R. § 64.1200, both as published in the eCFR through December 7, 2025. The California authorities are Evidence Code § 413, Code of Civil Procedure § 2023.030, and CACI No. 204 in the 2025 edition of the Judicial Council of California Civil Jury Instructions.

The court decisions are Gregory v. State of Montana, 118 F.4th 1069 (9th Cir. 2024); Cedars-Sinai Medical Center v. Superior Court, 18 Cal. 4th 1 (1998); Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276 (N.D. Cal. 2015); Wakefield v. ViSalus, Inc., No. 3:15-cv-1857-SI (D. Or. Mar. 27, 2019); Perrong v. Sperian Energy Corp., No. 2:19-cv-00115-RFB-EJY (D. Nev. Jan. 17, 2020), and its October 27, 2020 order; and Barton v. Delfgauw, No. 3:21-cv-05610-DGE (W.D. Wash. Mar. 13, 2025).

This post is general information about the Telephone Consumer Protection Act and related laws as of December 7, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.