Yesterday, I asked my Electronic Evidence class at Tulane Law School, “What’s the difference between a preservation letter and a legal hold notice?”
Do you know?
I got the simple answer I sought: You put your clients on notice of legal hold; you send a preservation letter to the other side. Another difference is that there is no legal duty to dispatch a preservation letter, but woe betide the lawyer who fails to initiate a prompt and proper litigation hold!
In truth, the two missives have much in common. Both seek the preservation of evidence, and both are best when clear, specific and instructive. Both must go out when you know less than you’d like about sources of potentially responsive information. Finally, both tend to receive minimal thought before dissemination, resulting in easily ignored, boilerplate forms crowding out artfully-targeted requests.
If I’m frank, most of what passed for preservation letters “back in the day” were, well, crap. They sprang from forensic service providers and sounded more like ransom notes than statements of a practical and proportionate legal duty. Literal compliance required pulling the plugs on the computers and backing away…very…very…slowly. But, with the first 2006 amendments to the Federal Rules of Civil Procedure came a groundswell to routinize e-discovery, to label its stages (as in the iconic EDRM diagram) and to systemize its execution by development of “defensible, repeatable processes.” So, way back when, I wrote an article introducing requesting parties to the “perfect” preservation letter and offering an example as a drafting aid. Perhaps because it was the only lifeboat in a storm, it took off; and it wasn’t long before lawyers on the north side of the docket made it their favorite opening salvo.
If that sounds like bragging, know that I’m not proud of what happened. People started using the exemplar “perfect” letter in the lazy way I hoped they wouldn’t: as a form pitched at cases of every stripe and type.
Hey folks. “Perfect” was tongue-in-cheek! I wrote,
You won’t find the perfect preservation letter in any formbook. You must custom craft it from a judicious mix of clear, technically astute terminology and fact-specific direction. It compels broad retention while asking for no more than the essentials. It rings with reasonableness. Its demands are proportionate to the needs of the case, and it keeps the focus of e-discovery where it belongs: on relevance.
But no one read that. It was just too easy to hand the example over to an assistant and say, “send this out in all our cases.”
Fast forward to 2018 and counsel to the President of the United States sends out my letter without updating it to reflect any of the changes we’ve seen in sources and forms of electronically stored information since, say, Hurricane Katrina. Imagine a preservation letter from President Trump that ignores tweets, for goodness sake! Clearly, the article and the accompanying exemplar letter both needed more than a fresh coat of paint. Weirdly, the gap hadn’t been filled by anything else in fifteen years.
A few weeks back, I updated and published the exemplar letter, with a fresh plea to use it as a drafting aid and not as a form. Today, I finished updating the guide to its use, once again called (IRONICALLY) The Perfect Preservation Letter. It’s still no masterpiece. To be useful, the letter must be a living document, changing to reflect new sources (Dating sites! I forgot to add dating sites!) and improved ways to preserve and acquire evidence. I hope a new generation of lawyers finds it instructive. There’s plenty of room for improvement, so dig in, make it better, make it your own.