Antispoliation Letter to Opposing Counsel

Note: This notice applies both to computers, storage media, and other electronic data in which your client has a personal ownership interest as well as those of the business(es) in which he/she has an interest.
By this letter, you and your client{s} are hereby given notice not to destroy, conceal, or alter any paper or electronic files and other data generated by and/or stored on your client's computers and storage media (e.g., hard disks, floppy disks, backup tapes), or any other electronic data, such as voicemail.

As you know, your client's failure to comply with this notice can result in severe sanctions being imposed by the court for spoliation of evidence or potential evidence.

Through discovery, we expect to obtain from you a number of documents and things, including files stored on your client's computers and on your client's computer storage media. You will soon receive initial interrogatories and requests for documents and things.

To avoid spoliation, you will need to provide the data requested on the original media.

Electronic documents and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists, we will require all documents in their electronic form. We may also discover the paper printouts of those documents that contain unique information after they were printed out (such as paper documents containing handwriting, signatures, annotations, highlighting, and redactions) along with any paper documents for which no corresponding electronic files exist.

Our discovery requests will ask for certain data on the hard disks, floppy disks, and backup media used in your client's computers. Some of this data is not readily available to an ordinary computer user, such as "deleted" files and "file fragments." As you may know, although a user may "erase" or "delete" a file, all that is really erased is a reference to that file in the hard drive. Until and unless overwritten with new data, a "deleted" file can be as intact on the disk as any "active" file you would see in a directory listing.

Courts have made it clear that all information available on electronic storage media is discoverable, whether readily readable ("active") or "deleted." Accordingly, electronic data and storage media that may be subject to our discovery requests and that your client is obligated to maintain (and not alter or destroy), includes but is not limited to the following:

  • All digital or analog electronic files, including "deleted" files and file fragments, stored in machine-readable format on magnetic, optical, or other storage media, including the hard drives or floppy disks used by your client's computers and their backup media (e.g., other hard drives, backup tapes, data ports, keys, Zip disks, floppies, CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not. More specifically, your client is to preserve all e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all presentation data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management, and personal information management software (such as Microsoft Outlook, Palm Calendar, or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as PalmPilot, HP Jornada, Cassiopeia, or other Windows-based, or Pocket PC devices; all data created with the use of "smartphones," such as Treos, Blackberry, etc. or other similar devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web-browser-generated history files, caches, and "cookies" files generated at the workstation of each employee and/or agent in your client's business and on any and all backup storage media; and any and all other files generated by users through the use of computers and/or telecommunications, including but not limited to voicemail. Further, you are to preserve any log or logs of network use by your client personally or by he/she at the business(es) in which the parties' have an interest and his/her employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit "mirror" evidentiary image copy of the storage media of each and every computer (and/or workstation) and network server in the client's control and custody, as well as image copies of all hard drives retained by you and no longer in service, but in use at any time from ____________ to the present.

  • Even where a paper copy exists, we will require all documents in their electronic form

  • Your client is also not to delete, move, modify, encrypt, defrag, pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made.

  • Your client is also to preserve and not destroy all passwords, decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction software, and any and all other information and things necessary to access, view, and (if necessary) reconstruct the electronic data we will request through discovery.

1. Business Records: [All documents and information about documents containing backup and/or archive policy and/or procedure, document retention policy, names of backup and/or archive software, names, and addresses of any offsite storage provider.]

  • All e-mail and information about e-mail (including message contents, header information, and logs of e-mail system usage) sent or received by him and/or the following persons: [list names, job titles]
  • All other e-mail and information about e-mail (including message contents, header information, and logs of e-mail system usage) containing information about or related to: [insert detail]
  • All databases (including all records and fields and structural information in such databases), containing any reference to and/or information about or related to: [insert detail]
  • All logs of activity (both in paper and electronic formats) on computer systems and networks that have or may have been used to process or store electronic data containing information about or related to: [insert detail]
  • All word processing files, including prior drafts, "deleted" files, and file fragments, containing information about or related to: [insert detail]

With regard to electronic data created by application programs, which process financial, accounting and billing information, all electronic data files, including prior drafts, back-up files, "deleted" files, and file fragments, containing information about or related to: [insert detail]

  • All files, including prior drafts, "deleted" files, and file fragments, containing information from electronic calendars and scheduling programs regarding or related to: [insert detail]
  • All electronic data files, including prior drafts, "deleted" files, and file fragments about or related to:[insert detail]

2. Online Data Storage on Mainframes and Minicomputers: With regard to online storage and/or direct access storage devices attached to your client's mainframe computers and/or minicomputers: they are not to modify or delete any electronic data files, "deleted" files, and file fragments existing at the time of this letter's delivery, which meet the definitions set forth in this letter, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of this litigation.

3. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes, and Other Removable Electronic Media: With regard to all electronic media used for offline storage, including magnetic tapes and cartridges and other media that, at the time of this letter's delivery, contained any electronic data meeting the criteria listed in paragraph 1 above: Your client is to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with their computer systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes, and all other media, whether used with personal computers, minicomputers, or mainframes or other computers, and whether containing backup and/or archive data sets and other electronic data for all of their computer systems.

4. Replacement of Data Storage Devices: Your client is not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or upgrade and/or other reasons that may contain electronic data meeting the criteria listed in paragraph 1 above.

5. Fixed Drives on Stand-alone Personal Computers and Network Workstations: With regard to electronic data meeting the criteria listed in paragraph 1 above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this letter's delivery, your client is not to alter or erase such electronic data, and not to perform other procedures (such as data compression and disk defragmentation or optimization routines) that may impact such data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve copies during the pendency of this litigation.

6. Programs and Utilities: Your client is to preserve copies of all application programs and utilities, which may be used to process electronic data covered by this letter.

7. Log of System Modifications: Your client is to maintain an activity log to document modifications made to any electronic data-processing system that may affect the system's capability to process any electronic data meeting the criteria listed in paragraph 1 above, regardless of whether such modifications were made by employees, contractors, vendors and/or any other third parties.

8. Evidence Created Subsequent to This Letter: With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not to be destroyed and your client is to take whatever steps are appropriate to avoid destruction of evidence. Any and all media storage devices containing potentially discoverable information should not be disposed of due to upgrades, failures, or any other reason.

To assure that your obligations and those of your client preserve documents and things will be met, please forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter. FA

Source: Lorne B. Gold, Attorney at Law, has a practice limited to family-law matters, including divorce, custody, support issues, and inter- and intrastate moves.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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