Best Uses for Preservation Letters

Clients often ask us to assist with sample preservation letters. We encourage clients to briefly describe the nature of the dispute and identify what makes Electronically Stored Information (or ESI) relevant in their preservation letters. For California State cases, we recommend referring to the duty of counsel to meet and confer under California Rules of Court, specifically, to discuss the preservation of ESI under the California Code of Civil Procedure. The letter should serve as an initial identification of relevant ESI to be preserved and preferred methods of defensible collection of data. California recognizes that for every wrong, there is a remedy. California allows a separate cause of action for the destruction of evidence.

In Federal cases, the duty to meet and confer also exists under the Federal Rules of Civil Procedure. In the Northern District of California, the Court encourages the use of a “Checklist for ESI.” Each party has a duty to preserve relevant electronically stored information, when they “knew or should have known” they were in possession of relevant evidence. The failure to preserve ESI with the intent to deprive the other party of the ESI, can result in sanctions.

All ESI should be preserved in its native application in a forensically defensible manner. It is imperative that parties deactivate their auto-delete capabilities and suspend their data destruction policies on relevant sources of ESI, to ensure no data is destroyed. Relevant data may include email, spreadsheets, documents, and social media posts, to name a few.

With any ESI collection, specific types of software should be used by someone trained in the use of that software in a forensically defensible manner, with a proper chain of custody and documented steps for collecting the ESI, as they may be subject to deposition. Email should be identified by the sender’s name, email address(es), and possible date ranges. Smartphones and tablets should identify the individual who uses the device, and the make and model, if possible. If there is relevant ESI that is not reasonably accessible, this data should be identified and sequestered. In some cases, the receiving party will need to demonstrate the burden that the information is not reasonably accessible because of undue burden or expense.