TCPA Defense Guide

Defenses / Evidence to preserve now

Evidence to preserve now: the records every defense on this site depends on

Updated 2026-11-037 minute read

A demand letter is the moment litigation becomes reasonably foreseeable, and that is the moment the duty to preserve evidence begins. Records destroyed after it, including by an auto-delete setting nobody thought about, can lead to sanctions and to a court instructing a jury to assume the missing records would have hurt you. Every defense on this site is proven with documents. This page is the list.

First day

  1. Issue a litigation hold. A written notice to everyone who touches calling, texting, marketing, IT and vendor management: do not delete, alter or discard anything related to outbound contact for the period in the letter and before. Keep a copy of the notice and the list of recipients.
  2. Suspend automatic deletion. Dialer, texting platform, CRM, call recording storage, email retention, shared drives. Carriers keep call detail records for a limited time; request yours in writing now.
  3. Tell the vendors. Send the hold to every call center, lead generator and platform involved, and ask them in writing to preserve their records about your account. Their records also decide whether "our vendor made the calls" is a defense.
  4. Do not clean anything up. Not the consent form, not the script, not the list. A record edited after the letter is worse than a bad record.

What to collect, by defense

DefenseRecords
Consent and written consentPer-number consent records; form and script versions with dates; session data; recordings; lead certificates; opt-out and internal do-not-call logs.
Established business relationshipCRM transaction and inquiry records with dates; proof the number belonged to the customer; stop requests.
Reassigned numbersReassigned Numbers Database query logs; consent dates; wrong-number flags and suppression dates.
Not an autodialerPlatform documentation; campaign configuration; list uploads and sources; click-to-dial logs; vendor contacts who can give a declaration.
Vendor liabilityContracts; all communications about lists, scripts, consent and complaints; access and integration records; the date you first learned of a problem.
StandingCall logs with connection and duration; message content; call counts per number per twelve months.
Statute of limitationsDated call records; any tolling agreement; dockets of related class actions.
ArbitrationTerms version history; acceptance records with session data; the signup flow as rendered; lead vendor terms and records.

How to collect

Export in native format with metadata: the platform's CSV or JSON export, not a screenshot of a dashboard. Screenshots are a supplement for things that cannot be exported, like how a form rendered. Keep the original export untouched and work on copies. Record what you collected, from where, when, and who did it. That log is itself evidence that you preserved in good faith.

Then reconcile. Match each listed call in the letter to your records: found or not found, consent record or none, date inside or outside four years, your system or a vendor's. That reconciliation is the document you and your lawyer will work from, and it is the basis for any written response. Each listed number is tested first on consent as a TCPA defense, then on the four-year statute of limitations. Where it finds the calls in your records and no defense on this site reaches them, the realistic answer is to resolve those calls by agreement rather than litigate them. A defense is for the calls it actually covers.

The preservation duty arises under the rules of civil procedure and the courts’ inherent authority; in federal court see Fed. R. Civ. P. 37(e) on failure to preserve electronically stored information.

What not to do

Verify that the domain on the letterhead resolves to the entity identified as the sender; a mismatch goes in the file as the first fact to clear up before any response issues.

Evidence for this defense
  1. The litigation hold notice and its distribution list.
  2. Confirmation that auto-deletion was suspended on each system, with the date.
  3. Preservation requests sent to carriers and vendors, and their replies.
  4. Native exports of call, text, consent, scrub, opt-out and database query records, with a collection log.
  5. Your reconciliation of the letter against those records.

Questions this defense raises

The letter has not become a lawsuit. Does the duty to preserve really apply?

The duty arises when litigation is reasonably anticipated. A demand letter that threatens a claim is the usual trigger. Treat it as live.

Our dialer only keeps 90 days of logs. What now?

Suspend the rolling deletion today and export what exists. Request carrier records in writing. Older records that are already gone cannot be recovered, and the gap will be visible in discovery.

Should we ask the vendor to send us their consent records?

Yes, in writing, with a request to preserve everything about your account. Keep the request and the reply.

Can we keep calling while we sort this out?

Calling the listed numbers again is a new violation. Calling the rest of the list without reviewing consent is how the next letter gets written.