In preparation for the filing of a lawsuit, careful consideration should be given to the creation of a preservation letter to the opposing party. The preservation letter, which sometimes will precede the lawsuit itself, will often act as a shot across the bow alerting the other side to the issue and serve as a warning to retain documents and electronic information that is relevant to the lawsuit.
Traditionally, retaining and preserving paper documents was easy: simply set the original (or a copy) aside. However, based on how business is conducted today, preserving electronic data or even knowing what electronic data to retain poses unique challenges in litigation because:
- Touching or opening the electronic data changes its metadata
- Digital evidence is often not formatted for printing
- Electronic data often must be interpreted to be useful
- The vast numbers of sources of electronic data subject to preservation
An effective electronic evidence preservation letter must clearly identify the materials requiring protection, educate the other side about preservation options and expressly lay out the consequences for failing to preserve the evidence. Some essential tips for those seeking to craft a successful preservation letter:
Halt Any Routine Destruction or Overwriting
An effective preservation letter must, as a preliminary matter, seek to halt all routine business practices of disposing of or “writing over” potential evidence. Many companies today have policies in place to make sure that only the latest version of documents (often only ever kept in electronic form) are maintained on the company’s servers. If these prior versions of documents are potentially relevant sources of information, once litigation is reasonably anticipated, copies should be retained along with any associated metadata.
Focus on items specifically bearing on the underlying claim or in the lawsuit. This will identify the relevant business units, time periods and relevant employees at issue. Electronically stored information to be retained should be defined as broadly as possible to cover all potentially relevant information. For example:
- E-mails and all Digital communications (e.g. Outlook PST files, voice mail, instant messages, text messages)
- Databases (e.g. Oracle, Access, etc.)
- Calendar, Contact and Relationship Management Data (e.g. Outlook, Outlook PST, Yahoo)
- Online Access Data (Temporary Internet Files, History, Cookies, etc.)
- Back Up and Archival Files (e.g. Zip files, Offsite data storage contractors, etc.)
If your current preservation letter is essentially “save everything, from everyone, on every computer” it is time to re-write it because not only will it not get enforced in Court, but it may potentially be seen as discovery abuse. The ideal preservation letter compels broad retention while appearing to ask for no more than the bare essentials.
Request Immediate Intervention to Preserve the Metadata
A well crafted preservation letter also instructs the opponent to immediately preserve all potentially relevant electronically stored information with the earlier created or “last modified” date on or after the relevant date for the litigation through the date of the preservation demand.
If you open a Microsoft Word document or copy that document to a CD or thumb drive, you have just irretrievably changed that electronic document’s system metadata. Metadata is “data-about-data”, such as the document’s last access date or the document’s creation date – dates that may themselves be key pieces of evidence in the case. If you reasonably anticipate that metadata will be important, be sure to clearly direct the opposing party to preserve it and warn of the risks that can potentially destroy or corrupt the document’s valuable metadata.
As an example of the potential importance of metadata, in a recent complex trade secrets dispute the plaintiff’s “confidential” technical manuals were discovered through an Internet Google search on a publicly available website maintained by a Houston Oil & Gas company. The metadata of those specific documents, including the author, the creation date and the “posting” date (to show how long the documents had been available online) all became important pieces of evidence in the dispute.
Always Remember the “Good for the Goose” Rule
Only craft a preservation letter or request that your opponent preserve data to the same extent that your client is prepared to preserve data, as you just may find yourself the recipient of an eerily similar preservation letter yourself. Also, if you cannot articulate why a particular type of electronic evidence is potentially relevant, that is a good indication to carefully consider whether to demand its retention in the first place.
Don’t Forget the Paper!
Some attorneys become so obsessed in their quest to obtain all relevant electronic evidence that they fail to direct their opponent to retain paper copies of key documents. While paper documents become scarcer and scarcer as technology and companies begin moving “into the cloud” – paper evidence will likely hold critical pieces of evidence. For instance, paper that is printed out may often contain a user’s handwritten notes or other annotations that may not show up on the e-mail or electronic document. While ensuring preservation of electronic data is critically important, do not forget about the paper.
Know When NOT to send a Preservation Letter
Finally, despite the multitude of benefits of sending out a preservation letter early on, there may be strategic reasons to delay in sending out the preservation letter. For example, once a preservation letter is sent, the other side will generally hire an attorney which will trigger the “anticipation of litigation” privilege and potentially shield documents and communications that would otherwise not be privileged. This is particularly an issue with “on-going investigations.” The timing of sending the preservation letter should be given careful consideration in the light of the overall strategy in the case.
Whether it is sent at the beginning or held on a particular occasion for strategic reasons, the preservation letter will often times be the first impression of you and the merits of your case. A well crafted preservation letter forces the recipient to carefully weigh the potential costs (which can be significant) and the business interruption in collecting and maintaining the relevant information during the litigation (which can be even more significant). It is important that the preservation letter is clear, effective, and sent at the right time for your case.