Craig Ball Just Published a New Exemplar Preservation Letter: eDiscovery Best Practices

OK, it was Thursday, but close enough.  Who says you can’t learn real news from Twitter?  😉  And, why is there a picture of a crossed-out grenade at the top of this post?  Read on, and you’ll find out.

On Thursday, Craig Ball issued a tweet stating “Long ago, I penned a piece called ‘The Perfect Preservation Letter,’ including an exemplar demand.  It enjoyed broad uptake in the absence of anything better.  It’s outdated.  Today, I published a fresh version suited to modern forms. Please use sensibly.”

That “perfect” preservation letter was published all the way back in 2006.  And, as we’ve all seen (and our panel discussed in last week’s ACEDS webinar), there are so many more sources of ESI to address than there were back then.  Social media was still in its infancy. Remember Myspace?  It was the most popular social networking site in the world back then.  Mobile devices were very primitive and didn’t track the various types of data they do today.  And, Internet of Things devices?  Practically nonexistent, though the first computer connected device goes as far back as 1982 (a modified Coca-Cola vending machine at Carnegie Mellon University that was connected via switches to the main departmental computer to report its inventory and whether newly loaded drinks were cold yet or not).  Stump your friends with that little bit of trivia!

But, I digress.  Craig’s six page letter lists twenty-one types of ESI that are potentially relevant (while noting that they are “by way of example and not an exclusive list”), as follows:

  • Digital communications (e.g., e-mail, voice mail, text messaging, WhatsApp, SIM cards)
  • E-Mail Servers (e.g., Microsoft 365, Gmail, and Microsoft Exchange databases)
  • Word processed documents (e.g., Microsoft Word, Apple Pages or Google Docs files and drafts)
  • Spreadsheets and tables (e.g., Microsoft Excel or Lotus 123 worksheets)
  • Presentations (e.g., Microsoft PowerPoint, Apple Keynote, Prezi)
  • Social Networking Sites (e.g., Facebook, Twitter, Instagram, LinkedIn, Reddit)
  • Online (“Cloud”) Repositories (e.g., Drive, OneDrive, Box, Dropbox, AWS, Azure)
  • Online Banking, Credit Card, Retail and other Relevant Account Records
  • Accounting Application Data (e.g., QuickBooks, NetSuite, Sage)
  • Image and Facsimile Files (e.g., .PDF, .TIFF, .PNG, .JPG, .GIF., HEIC images)
  • Sound Recordings (e.g., .WAV and .MP3 files)
  • Video and Animation (e.g., Security camera footage, .AVI, .MOV, .MP4 files)
  • Databases (e.g., Access, Oracle, SQL Server data, SAP)
  • Contact and Customer Relationship Management Data (e.g., Salesforce, Outlook, MS Dynamics)
  • Calendar, Journaling and Diary Application Data (e.g., Outlook PST, Google Calendar, blog posts)
  • Backup and Archival Files (e.g., Veritas, Zip, Acronis, Carbonite)
  • Project Management Application Data
  • Internet of Things (IoT) Devices and Apps (e.g., Amazon Echo/Alexa, Google Home, Fitbit)
  • Computer Aided Design/Drawing Files
  • Online Access Data (e.g., Temporary Internet Files, Web cache, Google History, Cookies)
  • Network Access and Server Activity Logs

Craig’s letter goes on to address topics such as Immediate Intervention, Suspension of Routine Destruction, Preservation in Native Forms, Metadata, Paper Preservation of ESI is Inadequate (as the defendant learned in this recent case) and much more.

His new preservation letter is available here.  Craig notes at the top that it “isn’t the perfect preservation letter for your unique case, so don’t deploy it as a form. Instead, use it as a drafting aid to flag issues unique to relevant electronic evidence, and tailor your preservation demand proportionately, scaled to the unique issues, parties, and systems in your case.”

And, when I told Craig that I was going to promote it on this blog, he added: “Great! The notice needs to be more than a grenade lobbed into your opponent’s camp. By requiring that all parties promptly focus on the who, what and where of ESI, a thoughtful, well-crafted preservation demand forms the framework of a successful, proportional discovery process.”

Using the concepts of the letter to get discussions of all potential preservation obligations on the table up front is key to maximizing the potential availability of that ESI downstream.  And, now you know why there’s a crossed-out grenade on this post!

Also, just a reminder that this Wednesday, July 22nd, EDRM will host the webcast Important eDiscovery Case Law Decisions for July 2020 at 1:00pm ET (12:00pm CT, 10:00am PT).  In this webinar, you’ll learn about key cases related to potential sanctions for spoliation of electronically stored information (ESI), as well as key cases related to data privacy and rights of litigants in civil and criminal cases from me, Mary Mack and Tom O’Connor.  To register for the webinar, click on the link above, then scroll down to the list of webinars and click the “Upcoming” tab, then scroll down within that tab to find this webinar and click to register for it.  Don’t miss it!

So, what do you think?  When is the last time you updated your preservation letter template?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

7 comments

  1. Thanks, Doug! Kind of you to share the shout out. I revised the letter today to add a link to a MS Word version and a few more modern source examples (Slack, TikTok). I want to invite your readers to propose ways to make the letter more useful. Thanks again.

  2. Awesome update. Thanks Doug. And thanks to Craig, too! I’ve used the letter more times than I can count over the years. You know what we also need? A standard legal hold template for use inside organizations. Got one of those lying around?

  3. Hi Mike!

    I have a lot of “standard” legal hold templates for use inside organizations. Good thing, too, because they could have come in handy during the Great 2020 Toilet Paper shortage. Most are good for nothing else but wiping your…. Anyway, the determination of enterprises to settle on a “standard” or omnibus legal hold document has been their undoing more times than I can count. In contrast to the uncertainty faced by opponents in seeking preservation, insiders are assumed to understand their own systems, sources and data compilations. Isn’t what that great work of satiric fiction, Sedona Principle Six, stands for? Legal holds must be bespoke and tailored to the roles of the recipients. How is it that corporations mewl and puke so pitifully about the cost of overpreservation then insist on standardizing their legal holds so that HR gets the same absurd notice as accounting, IT and Sales?

    I haven’t circulated examples of what I regard as better approaches to legal hold notices for the selfish reason that I make all my students go through two hold drafting exercise in my classes and, if I published an exemplar, I fear they would just find it and feed it back to me. What’s needed is an annotated hold documents, explaining what clauses are indicated and why. I’ve written a lot on this topic, some published so long ago that it would be like a scavenger hunt to find them! Here’s one:

    http://www.craigball.com/BIYC.pdf#page=168

    And here are my Ten Elements of a “Perfect” Legal Hold Notice

    1. Timely
    2. Communicated through an effective channel
    3. Issued by person(s) with clout
    4. Sent to all necessary custodians
    5. Communicates gravity and accountability
    6. Supplies context re: claim or litigation
    7. Offers clear, practical guidance re: actions and deadlines
    8. Sensibly scopes sources and forms
    9. Identifies mechanism and contact for questions
    10. Incorporates acknowledgement, follow up and refresh

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