Description

Document Preservation Letter

Summary

A party can use a document preservation letter to ask another party to preserve relevant evidence. Examples of evidence include hard copy documents and electronically stored information (ESI). A document preservation letter is also known as a preservation demand or preservation notice.

Details

Individuals and organizations develop duties to preserve information under various circumstances. Some of these circumstances may include when parties reasonably anticipate initiating or becoming a party to litigation or a government investigation and when they are served with a subpoena. When a party has a duty to preserve, it must identify and take reasonable efforts to preserve documents and other information, including electronically stored information (ESI), that both the party should reasonably expect are relevant to the anticipated litigation or investigation and are in the party’s possession, custody, or control.

Duty to Preserve

Individuals and organizations develop duties to preserve information in various circumstances, including when they:

• Reasonably anticipate initiating or becoming a party to litigation or a government investigation;
• Are served with a subpoena.

When an individual or organization (party) has a duty to preserve, it must identify and take reasonable efforts to preserve documents and other information, including electronically stored information (ESI), that both:

• The party should reasonably expect are relevant to the anticipated litigation or investigation; and
• Are in the party’s possession, custody, or control.

Objectives of a Preservation Letter or Preservation Notice

A preservation letter alerts an opponent or a non-party that it must preserve information relevant to a dispute. By sending the preservation letter/notice, the requesting party notifies the recipient:

• That it should issue a litigation hold and take other reasonable steps to preserve potentially relevant documents and information.
• About the types of documents, including ESI, it should preserve.
• That its preservation efforts should include:
  • specific documents;
  • certain information about documents, such as metadata; and
  • documents that particular custodians possess or control.

Timing and Effect of a Preservation Letter

Generally, a party should send a preservation notice to an opponent or non-party as early as possible, such as before another party files a complaint or begins formal discovery. A timely preservation letter:

• Helps ensure that the recipient recognizes its duty to preserve relevant information.
• Reduces the risk of the recipient losing relevant information due to:
  • routine document destruction under a company’s document retention policy;
  • inadvertent deletion; or
  • intentional deletion.
• May increase the likelihood of a court sanctioning the recipient if it destroys relevant information after receiving the preservation letter, because the recipient has a less plausible argument that it was unaware of its duty to preserve.

Preservation Letter Not Required to Trigger a Duty Preserve

However, a party does not have to send a preservation letter to trigger a recipient’s duty to preserve documents. An individual or entity must preserve evidence when there is a reasonable basis to know that the evidence may be relevant to anticipated litigation.

Preservation Letters Do Not Always Create a Duty to Preserve

On the other hand, sending a preservation letter does not necessarily trigger a duty to preserve. If the recipient does not already have a duty to preserve, receiving a preservation letter triggers the duty only if either (i) counsel sends the letter after litigation has started, or (ii) the letter unequivocally threatens litigation.  A preservation letter that counsel sends before litigation begins must express more than mere discontent to trigger the duty to preserve.

Who Should Send a Preservation Letter?

Depending on the circumstances and strategic considerations, outside or in-house counsel may send a preservation letter. Counsel should draft the preservation request so that it is reasonable and proportionate to the case. A party requesting preservation likely will receive from an opponent a reciprocal request to preserve. Therefore, counsel should not draft an overly burdensome preservation request or include requests with which the requesting party itself is not prepared to comply.

Who Should Receive a Preservation Letter?

Who should receive a preservation letter depends on whether the recipient has counsel. If the recipient is:

• Represented by counsel, a party or its outside counsel should send the letter to the recipient’s counsel.
• Not represented by counsel, a party or its outside counsel should send the letter to one or more of the following:
  • any known in-house counsel;
  • document custodians identified in the preservation letter;
  • non-parties identified in the preservation letter; and
  • senior executives, such as general counsel, the chief financial officer, and the chief executive officer.

When sending a preservation letter to a large corporation, counsel should send it to as many relevant individuals at the organization (and relevant non-parties) as possible to ensure that the right people at the organization receive it as quickly as possible.

When to Forego or Delay Sending a Preservation Letter

Whether to send a preservation letter is a strategic decision. A party may delay or forego sending a preservation letter:

• To avoid triggering the work product doctrine (for example, the party may want access to information about an opposing party or third-party’s ongoing investigation that the work product doctrine does not yet protect, because it is not being conducted in anticipation of litigation).
• If alerting the opponent before filing the case will negatively affect the case.
• If the party is unsure that it will file the case.