Spoliation of Electronic Evidence: A Primer with Sample Spoliation Letter to Opposing Counsel

This example illustrates how evidence collected from electronic devices in a family law matter may help win or lose your case—but what if the offending party deletes the evidence from all devices before the aggrieved party finds it or receives it in discovery? How do we notify opposing parties that they are not permitted to delete text messages before they are obligated to produce them to us in discovery? The risk of spoliation—the improper destruction of relevant evidence—is far more serious with e-discovery than with paper discovery because it is difficult to ensure that relevant electronic files are not deleted or altered. See James M. Johnston, Jr. & Philip A. Whistler, E-Discovery: A Critical Litigation Issue for Franchisors and Franchisees, 26 Franchise L.J. 20 (2006).

A spoliation letter (a.k.a. antispoliation letter or preservation letter) is a very useful tool to put the other party on notice with respect to his or her duties to avoid spoliation. Jay E. Grenig et al., Electronic Discovery and Records and Information Management Guide: Rules, Checklists and Forms § 9:9 (2016–2017 ed). It is generally established that a party in litigation or who has reason to anticipate litigation has an affirmative duty to preserve evidence that might be relevant to the issues in the lawsuit. See, e.g., Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014) Voom HD Holdings, LLC v. Echostar Satellite, L.L.C., 939 N.Y.S.2d 321, 324 (App. Div. 1998). In the family law context, this duty may even arise at the time of separation if the spouses could reasonably anticipate that a divorce petition might be filed. See, e.g., Danberger v. Danberger, 95 A.3d 53 (Del. Fam. Ct. 2013).

A spoliation letter also serves as an excellent basis for seeking sanctions if it is later discovered that spoliation did, in fact, occur. Grenig et al., supra. Below is a sample spoliation letter to opposing counsel that focuses on identifying categories of electronic information that should be preserved and emphasizes that the obligation to preserve evidence applies to existing as well as to-be-acquired or to-be-created electronic information. See Johnston & Whistler, supra. It is important to understand the different formats in which electronically stored information (ESI) can be produced so that you “can make informed decisions about the advantages and disadvantages of obtaining and producing data in a particular format and advocate effectively in support of those decisions.” Edward M. Spiro & Judith L. Mogul, “The New Black”: Meditations on Metadata, Expert Analysis, Southern District Civil Practice Roundup, N.Y.L.J., Feb. 5, 2009, at 3.

Please use the following letter as a starting point, and tailor it to your own needs, as each case involves different facts, parameters, and ESI. For example, if this is used in a divorce matter in which one spouse owns a business, you may want to add more detailed language regarding directions to third parties on preservation of the business’s ESI.

Sample Spoliation Letter to Opposing Counsel

Disclaimer: This article/sample letter is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for demanding preservation of electronic evidence. It may also be wise to send a similar letter to your client.

[Date]

[Opposing Counsel’s Address]

Re: [Legal Matter]

Dear __________________:

Our firm has been retained to represent [PARTY, NAME OF YOUR CLIENT] in this litigation. I write with regard to the preservation of documents, tangible things, and electronically stored information (hereinafter “ESI”) related to the above-referenced matter. As you are no doubt aware, the failure to preserve the data as outlined below may constitute spoliation of evidence and may subject your client to evidentiary and/or monetary sanctions.

Your client’s duty to preserve documents, tangible things, and ESI arises in law and equity independently from this letter. However, please accept this letter as a formal notice that your client must preserve documents, tangible things, and ESI potentially relevant to the issues in this case. As used in this document, “you” and “your” refers to [NAME OF OTHER PARTY], and [his/her] agents, attorneys, accountants, and other persons occupying similar positions or performing similar functions.

Through discovery, we expect to obtain from you a number of documents and things, including ESI stored on [his/her] current and former computer systems and other media and devices. ESI should be afforded the broadest possible meaning and includes (by way of example and not as an exclusive list) potentially relevant information electronically, magnetically, optically, or otherwise stored as:

• Social media accounts, smartphone applications, and their associated account information (e.g., Facebook, Instagram, Twitter, LinkedIn);
• Storage devices and cloud data storage (e.g., iCloud, Google Drive, Dropbox);
• Digital communications (e.g., text messages, email, voice mail, and ephemeral messaging [Snapchat, etc.]);
• Word processed documents (e.g., Word documents and drafts);
• Spreadsheets and tables (e.g., Excel or Numbers);
• Accounting application data (e.g., QuickBooks, Money, Peachtree data files);
• Image and facsimile files (e.g., PDF, TIFF, JPG, GIF images);
• Sound recordings (e.g., WAV and .MP3 files);
• Video and animation (e.g., AVI and .MOV files);
• Databases (e.g., Access, Oracle, SQL Server, SAP);
• Contact and relationship management data (e.g., Outlook, ACT!);
• Calendar and diary application data (e.g., Calendar app, Outlook PST, blog tools);
• Online access data (e.g., temporary Internet files, history, cookies);
• Presentations (e.g., PowerPoint, Corel Presentations);
• Network access and server activity logs;
• Project management application data;
• Computer-aided design/drawing files; and
• Backup and archival files (e.g., Zip, GHO).

Metadata and deleted data are included in the duty to preserve ESI. Every electronic document contains metadata. Some courts have identified three types of metadata, with the third type being generally “produced as a matter of course.” The first type, application metadata, is information created by the software used to create the document; it reflects editing changes or comments and instructions concerning fonts and spacing. Application metadata is embedded in the document it describes and remains with the document when it is moved or copied. The second type, system metadata, includes information about the creation or revision of a document, such as the document’s author or the date and time of its creation or modification. System metadata is not embedded in the document but can be obtained from the operating system or information management system on which the document was created. In addition to application and system metadata, embedded metadata (more properly referred to as user-contributed content, rather than as a type of metadata) consists of text, numbers, content, data, or other information that is directly or indirectly inputted into a native file by a user and that is not typically visible to the user viewing the output display of a native file; embedded metadata includes spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information.

Deleted data is data that, in the past, existed on the computer as live data and that has been deleted by the computer system or end-user activity. Deleted data remains on storage media in whole or in part until it is overwritten by ongoing usage or “wiped” with a software program specifically designed to remove deleted data. Even after the data itself has been wiped, directory entries, pointers, or other metadata relating to the deleted data may remain on the computer.

Please direct your client to take affirmative steps to prevent anyone with access to [his/her] data, systems, and archives from seeking to modify, destroy, or hide ESI on network or local hard drives and on other media or devices (such as by deleting or overwriting files, using data shredding and overwriting applications, defragmentation, re-imaging, damaging or replacing media, encryption, compression, steganography, or the like). Further, please take all reasonable steps to preserve digital evidence that may have been deleted from your client’s active file, including the imaging of hard drives.

The above list of ESI, along with the definitions of metadata and deleted data, are not intended to be an exhaustive list. Indeed, your client must act immediately to preserve potentially relevant ESI. As hard copies do not preserve electronic searchability or metadata, they are not an adequate substitute for, nor are they cumulative of, electronically stored versions. If information exists in both electronic and paper forms, please direct your client to preserve both forms. Further, please direct your client to preserve documents and other tangible items that may be required to access, interpret, or search potentially relevant ESI, including user ID and password rosters, keys, and information required to access encrypted files or run applications.

Adequate preservation of ESI requires more than simply refraining from efforts to destroy or dispose of such evidence. Your client must also intervene to prevent loss due to routine operations and employ proper techniques and protocols suited to protection of ESI. Accordingly, please direct your client to immediately initiate a litigation hold for potentially relevant documents, tangible things, and ESI and to act diligently and in good faith to secure and audit compliance with such litigation hold.

Please inform your client that [he/she] should anticipate that certain ESI will be sought in the form or forms in which it is ordinarily maintained. Accordingly, please direct your client to preserve ESI in such native forms and not employ methods to preserve ESI that remove or degrade the ability to search the ESI by electronic means or that make it difficult or burdensome to access or use the information. Your client should additionally refrain from actions that shift ESI from reasonably accessible media and forms to less accessible media and forms if the effect of such actions is to make such ESI not reasonably accessible.

Moreover, please forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter in order to assure that you and your client’s obligation to preserve documents and things will be met. Your preservation obligation extends beyond ESI in the care, possession, or custody of your client and includes ESI in the custody of others subject to [his/her] direction or control. This includes administrators and moderators of the following websites where ESI related to this suit may be stored, including but not limited to Facebook, Twitter, or any other social media site or website where your client maintains an account.

Please respond by [date/year] to confirm that the steps outlined in this letter to preserve documents, tangible things, and ESI potentially relevant to this action have been taken. Please do not hesitate to contact me to discuss preservation methods or any other questions. Thank you in advance for your prompt attention to this matter.

Sincerely,

[Attorney Name]

The authors thank the following individuals for use of portions of their sample preservation letters and/or articles: Craig Ball, The Perfect Preservation Letter, at 5 (2006), http://www.craigball.com/perfect%20preservation%20letter.pdf, and Spiro & Mogul, supra, at 3, col. 1.

The authors would also like to acknowledge and cite the following articles, case law, and other sample letters, which were used in preparing the above sample letter: In re State Farm Lloyds, 520 S.W.3d 595, 601 n.14 (Tex. 2017) (citing Aguilar v. Immigration & Customs Enf’t Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 354–55 (S.D.N.Y. 2008)); Pete Clancy, Nevada Lawyer (June 2009); Matthew Cohen et al., E-Discovery and Electronic Evidence Update, 42 The Advoc. (St. B. Tex., Section of Litig.) 1 (Spring 2008); Brian Clark & Eric Fierro, Negotiating a State of the Art ESI Protocol, Complex Litigation E-Discovery Forum, Discussion 3 (2016), https://www.lieffcabraser.com/pdf/CLEF_3_Protocol.pdf; Johnston & Whistler, supra; Merrick T. Rossein, Employment Discrimination Law and Litigation app. EE (Westlaw current through Dec. 2017); Grenig, supra, § 9:21.