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LITIGATION
REFERENCE: EXAMPLE - EVIDENCE PRESERVATION LETTER
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DATE
Re:
Jane Doe v. XYZ Company
Dear
___________:
As
critical evidence in this matter exists in the form of electronic data
contained in the computer systems of XYZ Company, this is a notice and
demand that such evidence identified below in paragraphs 2 through 6
must be immediately preserved and retained by XYZ Company until further
written notice from the undersigned. This request is essential, as a
paper printout of text contained in a computer file does not completely
reflect all information contained within the electronic file.
Additionally,
the continued operation of the computer systems identified herein will
likely result in the destruction of relevant evidence due to the fact
that electronic evidence can be easily altered, deleted or otherwise
modified. The failure to preserve and retain the electronic data
outlined in this notice constitutes spoliation of evidence and will
subject XYZ Company to legal claims for damages and/or evidentiary and
monetary sanctions.
1.
For purposes of this notice, "Electronic Data" shall include, but not
be limited to, all text files (including word processing documents),
spread sheets, e-mail files and information concerning e-mail
(including logs of e-mail history and usage, header information and
"deleted" files), internet history files and preferences, graphical
image format ("GIF") files, data bases, calendar and scheduling
information, computer system activity logs, and all file fragments and
backup files containing Electronic Data.
2.
Please preserve and retain all Electronic Data generated or received by
__________.
3.
Please preserve and retain all Electronic Data containing any
information about __________.
4.
XYZ Company must refrain from operating (or removing or altering fixed
or external drives and media attached thereto) standalone personal
computers, network workstations, notebook and/or laptop computers
operated by ___________.
5.
XYZ Company must retain and preserve all backup tapes or other storage
media, whether on-line or off-line, and refrain from overwriting or
deleting information contained thereon, which may contain Electronic
Data identified in paragraphs 2 through 4.
6. In
order to alleviate any burden upon XYZ Company, the undersigned is
prepared to immediately enlist the services of a computer forensic
expert to properly and non-invasively create back-up images all drives
and media in the custody and control of XYZ company that may contain
Electronic Data relevant to this matter. This can be accomplished
through a stipulation setting forth a similar procedural framework
outlined by the Court in Simon Property Group v. mySimon, Inc. 94
F.R.D. 639 (SD Ind. 2000), to ensure retention of all privileges while
properly preserving and processing computer evidence as mandated by the
court in Gates Rubber Co. v. Bando Chemical Indus., Ltd 167 F.R.D. 90,
112 (D.Col., 1996).
Please
contact me if you have any questions regarding this request.
Sincerely,
