This is the fourth column in a series addressing the challenges and opportunities presented by litigating in forums with no e-discovery rules. Read parts one, two, and three. This column considers how your company can use an early preservation demand to lay the foundation for later motion practice against an adversary who fails to take reasonable measures to preserve electronic evidence.
In last month’s column, we considered strategies for piercing the “veil of secrecy” that can impede effective e-discovery in some state courts when counsel use vague claims of privilege and work-product protection to avoid disclosing the scope of a party’s litigation hold. In this month’s column, we consider how to draft a preservation demand letter that will lay the foundation for more effective motion practice against an adversary who is refusing to provide a reasonable level of transparency and cooperation.
2. Sending a boilerplate preservation letter also runs the risk that your counsel may inadvertently make onerous preservation demands that are unsuitable for your company’s position in the litigation. I have seen many preservation demands that include ridiculously broad preservation requests. The preservation letter that your company’s counsel directs to your adversary should demand no more than what your company can reasonably undertake to preserve its own relevant data.
When litigating in state courts that offer little guidance on the preservation of ESI, the preservation letter is especially important because it places your adversary on notice that affirmative measures may be immediately necessary to prevent the loss of relevant evidence. There is now a well-developed body of precedent in the federal courts addressing the inadequacy of a preservation plan that relies solely on the blast distribution of a litigation hold notice with no follow up by counsel, but most state courts have no published decisions on this issue.