Successful litigation frequently turns on specific documents. When these documents are in the hands of an adversary, and there is a concern that they may be lost or destroyed before the start of discovery, then the issuance of a well-crafted preservation letter is generally recommended. Preservation letters are simply written demands that advise custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of litigation. Also called ‘litigation hold notices,’ these communications primarily serve to provide notice to an opposing party of its obligation to preserve documents or ESI related to specific issues.
Preservation letters may also be useful if, as litigation progresses, there is a claim of spoliation of evidence. The issuance of a well-written and inclusive preservation letter can be used to prove that the opposing party had notice of the nature of the potential claims against it and its obligation not to destroy relevant documents. This deprives the opposing party of shelter from sanctions should they subsequently attempt to claim ignorance of such obligation.
Preservation letters should be reasonably tailored and appropriate for the specific case. Certain obligations may be unduly burdensome or costly given the nature of a particular matter. Indeed, an overly broad preservation letter is unlikely to see compliance or enforcement. Therefore, the letter should be drafted carefully and with attention to the specific facts and nature of the particular case. Engaging legal counsel to draft these letters is advised.