Preservation - Preservation Letters

From EDRM

Preservation

Legal Requirements/Standards for Document Preservation General Rules Documents Potentially Subject to Preservation Obligations Non-Party Considerations Preservation Letters Importance of Realistic Preservation Letter Challenging Contents of Preservation Order when Agreement is not Reached Considerations Before the Duty to Preserve Attaches Understanding Records Retention Policies Identify the IT "Gurus" Proactive Contingency Planning Litigation Hold Memos Tailored to IT Personnel Executive Endorsement of Preservation Efforts Knowing and Understanding the IT Architecture Understanding the Backup Systems Employee Training Preparing Internal "Litigation Hold Memo" Template and Witness Interview Form Identifying Potential Sources of Information Addressing Retired Systems Preferred Vendor Arrangements Discovery Software to Assist in Preservation Proactive Email Archiving Systems Data That is Changed on an Onging Basis Implementation of Preservation/Litigation Hold Not All Cases Are Created Equally, Nor All Witnesses Implementation Considerations Additional Materials Participants

It is becoming commonplace for a party who seeks information in a dispute to issue a preservation letter to the adverse party that it will eventually be seeking information from. Many larger entities receive letters such as these on a regular basis. It is the position of this body that these letters should be viewed as an opening offer in a negotiation process that will ideally lead to a mutually agreed upon case management order that a judge or other authority will endorse. Both sides can benefit from early, upfront discussions regarding the scope of preservation.

Importance of Realistic Preservation Letter

When requesting that the other side preserve certain electronic data, it is vitally important that the request be tailored to cover only the documents that are important or relevant to one's case. If an extremely overbroad preservation letter is sent, it is possible that the judge or other authority presiding over the case will see this as a bad faith litigation tactic and not as a good faith offer to negotiate. In this case, it is possible to forfeit a favorable negotiation position.

When responding to a preservation letter, it is important to avoid some common mistakes. For example, ignoring a preservation letter is not a particularly good idea, nor is sending off a retaliatory letter meant to inflame the situation. Consider sending back a "counter offer" outlining what preservation steps will be taken, and detailing the costs involved with full compliance as well, perhaps suggesting an in person "meet and confer." Most importantly, this should be viewed as a negotiation process.

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Challenging Contents of Preservation Order when Agreement is not Reached

Because the duty to preserve is rather amorphous and perhaps meant to be over-inclusive as a matter of public policy, it is important to carefully weigh the decision to contest a preservation letter if an agreement cannot be reached. There are many costs, some apparent and some not, in a long and drawn out mini-trial regarding the specifics of preservation. However, it has been suggested by some authorities in the e-discovery arena that a genuine dispute over the scope of preservation prior to the filing of a complaint might be an appropriate subject for a declaratory judgment action.

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