Evox Productions, LLC v. Cars.com, LLC, No. 5:25-cv-02357-KK-SP (C.D. Cal. Sept. 15, 2026), full opinion (PDF)
Cars.com received a demand letter in July 2023 over car photographs still on its websites. The letter stated that Evox Productions intended to sue and that the recipient had a duty to preserve evidence. The first litigation hold went out in September 2025. By then, on the defendants' own account, the records showing how long the images had been displayed were gone. On September 15 a Central District of California judge concluded that the duty to preserve arose with the letter. A delay of over two years with no other preservation step was unreasonable, in the court's view. Because the court declined to find intent to deprive, the plaintiff received curative measures under Rule 37(e)(1) rather than an adverse inference. Evox may present evidence and argument about the loss at trial. The court barred the defendants from arguing that their missing records prove the images drew no traffic.
What happened
Evox Productions hosts a copyrighted library of car photographs that Cars.com had once licensed. Evox's demand letter alleged that more than a thousand of its images remained on the defendants' websites after the license ended. It stated that Evox intended to pursue all available remedies, including a lawsuit.
The defendants acknowledged the letter, engaged counsel, reviewed their systems, and removed the images Evox identified. They preserved nothing from that review except the email and internal communications their ordinary practices kept. Their first litigation hold notices issued in September 2025.
In discovery, Evox sought access logs, removal history, and source records showing what the defendants had done with the accused images after the letter. The defendants answered that they had no such documents. According to the defendants, Google had kept the related records only for a limited time. Their own servers, they said, had never retained the records. Evox moved for sanctions under Rule 37(e), asking for an adverse inference instruction or, in the alternative, a set of lesser measures plus its fees.
The court's analysis
The duty to preserve arose when the demand letter arrived, the court concluded, or at the latest when the defendants acknowledged it. In the court's view the letter left no doubt that Evox intended to sue. The defendants' own response confirmed that they anticipated litigation, the court added, since they engaged counsel. Holds issued after the complaint was filed were timely, the defendants argued. The court rejected that argument because the defendants had admitted taking no action to preserve records in response to the letter, a failure the court called unreasonable.
The defendants also argued that Evox's own screenshots made the lost data unnecessary. A screenshot cannot show where an image came from, how long it stayed available, or what traffic it received, the court reasoned. Only the defendants' server-side data, the court stated, could establish origin, duration, and their response to the letter. Because Evox's infringement claims require exactly that proof, the court found prejudice.
The defendants took no affirmative steps to delete evidence, in the court's assessment, nor did they selectively preserve some documents while destroying others. Negligent or even grossly negligent conduct does not show intent to deprive, the court stated, so the adverse inference was unavailable under Rule 37(e)(2).
Under Rule 37(e)(1) the court granted part of Evox's alternative request. Evox may present evidence and argument about the defendants' duty to preserve, their failure to meet it, and the significance of the lost records. The court barred the defendants from using the missing records to argue that the images were inaccessible, unindexed, or promptly removed, or that they drew no traffic. Nor may they use the absence of records to argue that the images came from some source other than files kept after the license ended. The court declined for now to give the neutral jury instruction Evox requested, leaving that question for trial. It also found Evox entitled to its reasonable fees and costs for the motion.
Why it matters
A recipient that engages counsel to answer a demand letter threatening suit will struggle to deny that it anticipated litigation. A court will likely date the duty to preserve from the letter, as this one did. Preservation must begin then, not when the complaint arrives.
Taking accused content down preserves nothing about how long it was up. The defendants took the images down as the letter demanded. They kept no record of how long the display had lasted or how many visitors had seen the photographs. Before anything changes, a party answering such a letter should capture the logs, the analytics, and the source records. Third-party retention windows can erase that data within months.
A movant who cannot establish intent should still ask for tailored measures in the alternative. Evox asked for the adverse inference first and lesser measures second. The measure the court granted keeps the defendants from turning their own missing records into evidence.
The full opinion is available as a PDF.
