Duty to Preserve and the Preservation Order

If you have been involved in a lawsuit before, you may remember seeing or receiving what is typically called a “preservation letter”. What is this preservation letter and what does it do?  A preservation letter may also be called a preservation order, a litigation hold, or a hold order. This is a letter instructing the recipient not to destroy, alter, or delete any documents helpful to the sender. This letter is critical in today’s world where most documents are electronically stored. Computers and other technologies allow us to electronically store vast amounts of information.  It also allows for the accidental or intentional deletion or alteration of such documents. This evidence must be preserved so that the court can make an informed decision on the case. For this reason, every party to the lawsuit has a duty to preserve evidence relevant to the claims of the lawsuit; however, the sending of a preservation letter is but one possible event triggering this duty.

Another event triggering this duty to preserver occurs when you reasonably anticipate litigation. When can you reasonably anticipate litigation? There are many situations which trigger reasonable anticipation of litigation; however, when a person files a complaint, or tells you or writes you about suing you or seeing you in court, your duty to preserve may have been triggered. When your I-am-about-to-be-sued-sense starts tingling, or you feel you should talk to your attorney, just in case, you should immediately stop any normal document disposal procedures immediately to prevent accusations of spoliation of evidence.

You really want to be careful to prevent any accusations of spoliation of evidence being brought against you. What is spoliation of evidence and why is it so bad? When you are accused of spoliation of evidence you are being accused of tampering with or destroying evidence. Precautions against spoliation must be taken as it is quite easy to inadvertently destroy or tamper with evidence, especially when it is electronically stored. The destruction of evidence may be subject to a variety of sanctions by the court. These sanctions can range from simple warnings to the dismissal of your case. If being sanctioned by the court for destruction of evidence sounds bad to you it sounds worse to the judge and jury.

So, what should you do to prevent accusations of spoliation? When you receive such a letter, or even before you receive such a letter, for reasons stated above, you should immediately stop deleting or altering any document that may be useful to the opposing party. If anyone else has access to these documents, you should also let them know that they must cease doing the same. If you know of or find out about any changes to any document helpful to litigation of this case, you should immediately note such changes and the who, what, when, where, and why of those changes, to be sent with the document upon discovery request. Possibly one of the best things to do is to have a set of instructions, plan, checklist, or manual, stating what should occur, especially with regards to documents, when this duty to preserve has been triggered. 

It is recommended that you involve an attorney in the creation and implementation of such a set of instructions as the duty to preserve is shared by all parties to litigation and your attorney will know better than you what documents you have a duty to preserve.  If you have any questions regarding this topic, please feel free to contact us.