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Craig Ball’s Perfect Preservation Letter 2020

Author: Craig Ball – Ball in your Court

…ESI resides not only in areas of electronic, magnetic, and optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You are obliged to preserve potentially relevant evidence from both sources of ESI, even if you do not anticipate producing such ESI or intend to claim it is confidential or privileged from disclosure…
…You should anticipate the potential that your officers, employees, or others may seek to hide, destroy or alter ESI. You must act to prevent and guard against such actions. Especially where company machines were used for Internet access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential, incriminating or embarrassing, and in so doing, they may also delete or destroy potentially relevant ESI. This concern is not unique to you. It’s simply conduct that occurs with such regularity that any custodian of ESI and their counsel must anticipate and guard against its occurrence…

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Editor Comment:

The above snippets are just two good examples of how preservation language and issues have evolved since Craig wrote his first exemplar preservation letter for the community back in 2006. I frequently review client preservation/record management policies, protocols and compliance practices to spot issues such as those called out above. I just wish that every plaintiff wrote their interrogatories and preservation demand letters in such clear, proportional terms. That would support my recommendations and solution proposals when potential gaps/risks are found during an assessment. Craig’s exemplar is meant as a drafting reference to be adapted to your various scenarios.

For instance, it has a “[ When Implicated]” note on the section for requesting system sequestration or forensic imaging of key player ESI. Every matter may require differing levels of preservation. I have seen defendants push back successfully against demands to image all cell phones/PCs in civil discovery without any potential bad actors, fraud or relevant evidence from those devices. As opposed to Craig’s discovery Holy Hand Grenade of Antioch, I prefer broad interrogatories and right sized discovery requests that deflate defense “overly broad and burdensome” arguments.

So what were your favorite clauses from Craig’s letter?

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