casemark/preservation-letter

Preservation Letter

Drafts a formal preservation notice establishing the opposing party's duty to preserve evidence, tailored to the matter's custodians, data sources, and time period.

Prerequisites

Gather before drafting:

1. Case identification — parties, caption/docket (if filed), or anticipated claims
2. Key facts — relevant dates, transactions, events establishing the dispute
3. Known custodians — individuals likely possessing relevant information
4. Data sources — IT systems, communication platforms, cloud services, retention policies
5. Temporal scope — preservation start date through present

Quick Start

Format as formal business correspondence: letterhead, date, recipient block (name/title/org/address), re-line with matter description.

Required Sections

| Section | Content | |---|---| | Opening Notice | Counsel, client, dispute nature. If filed: caption, court, docket. If pre-suit: state client reasonably anticipates litigation. Cite FRCP 37(e) or state equivalent. | | Matter Description | Factual context sufficient for recipient to identify custodians and sources. Do not disclose litigation strategy. | | Preservation Scope | Categorized instructions per scope table below | | Implementation Instructions | Litigation hold procedures per checklist below | | Spoliation Consequences | Legal consequences of non-compliance | | Response Requirements | Written acknowledgment deadline (5–10 business days), hold confirmation, contact info | | Closing | Formal closing, signature block with bar admissions |

Preservation Scope Categories

Include only categories applicable to the dispute:

| Category | Examples | |---|---| | Paper | Contracts, memoranda, notes, financials, invoices, drafts | | Electronic comms | Email, texts, IMs, social media, voicemails — all platforms/devices including personal if used for business | | ESI | Documents, spreadsheets, databases, presentations, calendars — native format with metadata intact | | Cloud/storage | Cloud services, shared drives, backups, archived data, servers, mobile devices | | Physical | Products, equipment, machinery, vehicles (if applicable) | | Audio/visual | Recordings, photos, videos, surveillance footage |

Key emphasis: metadata must be preserved intact; no format conversions; personal devices/accounts included if used for business.

Litigation Hold Checklist

Instruct recipient to:

• [ ] Suspend all routine destruction, auto-deletion, email purging, and retention schedules immediately
• [ ] Issue written hold notice to all custodians by name and position
• [ ] Direct IT to disable auto-deletion, preserve backups, protect systems from data-destructive maintenance
• [ ] Preserve all newly created documents relating to the matter
• [ ] Maintain records of all preservation efforts
• [ ] Continue hold until matter resolved or written release provided

Spoliation Consequences

Address with appropriate firmness:

• FRCP 37(e) sanctions: monetary penalties through adverse inference instructions
• Dismissal or default judgment in egregious cases
• Contempt findings
• Sanctions apply even for negligent destruction; intentional destruction risks punitive sanctions and criminal liability
• Routine business practices are not a defense once litigation is reasonably anticipated

Pitfalls and Checks

• Scope calibration — omit inapplicable categories (e.g., no physical evidence in a pure contract dispute)
• No strategy disclosure — provide enough context for compliance, nothing more
• Ongoing duty — emphasize preservation is continuous, not one-time
• Questions ≠ delay — state that scope questions do not excuse or delay compliance
• Temporal scope — define explicitly with start and end dates
• Jurisdiction — default to federal (FRCP 37(e)); adapt to state rules if specified
• Tone — professional courtesy with unmistakable firmness
• Citations — verify all case law and statutory references; mark uncertain ones with [VERIFY]