Specifically, the duty to preserve potentially relevant evidence may arise before the filing of a lawsuit if it is reasonably foreseeable that a lawsuit will be filed. It does not matter if the individual or organization is the initiator or the target of litigation, as the common law duty to preserve evidence arises at the moment that litigation is reasonably anticipated. The situation can arise, for example, if an individual or an organization plans to initiate litigation, a potential defendant receives a demand letter, a company learns that a former employee is seriously contemplating a lawsuit, or if an event or other circumstance would reasonably put an organization or an individual on notice that a lawsuit is likely to be filed.
In Brady’s case, his or the NFLPA’s attorneys will have to argue that litigation was somehow not reasonably foreseeable or anticipated despite every sports show talking head predicting that this situation would end up in court from the first day of the scandal. It seems highly implausible that a reasonable person in Brady’s situation would not foresee litigation and not think to preserve a cellphone after receiving multiple prior requests for it.