Document Preservation Letter
(Commercial Litigation)

Summary

This preservation letter can be used by counsel to give notice to an adverse party that they must preserve documents relevant to an anticipated commercial dispute or pending litigation. This template contains practical guidance, drafting notes, and an alternate clause. A document preservation letter will help to ensure that documents relevant to a dispute will be retained for future discovery in anticipated litigation. Once a party becomes aware that litigation is likely, it is obligated to suspend its standard document retention policies and preserve documents and other materials in its possession and/or control that are related and relevant to the dispute. See Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir. 2001) (noting that duty to preserve evidence extends to that period of time prior to litigation when a party should reasonably know that evidence may be relevant to anticipated litigation); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (holding that a party or anticipated party to litigation must retain all relevant documents that exist at the time the duty to preserve arises, as well as any relevant documents created thereafter). By sending a document preservation letter when a client anticipates that it will become engaged in litigation (as well as if litigation has already commenced), it places the opposing party on clear notice that it should immediately commence to preserve documents and other evidence, including electronically stored information (ESI), that may otherwise be destroyed or discarded before formal discovery requests can be made in the litigation. This will provide the sender with strong support in the event it seeks relief with the court should any spoliation of evidence occur, as well as provide the recipient with guidance as to what specific materials need to be preserved. Note that a preservation demand letter is not limited to adversaries, but can also be sent to a third party that may be in possession of evidence relevant to the dispute. The template letter is not based upon the requirements or laws of any specific state, jurisdiction, or court and, therefore, does not include any potential state law or court nuances. You should therefore ascertain whether there are any different or additional requirements imposed by the applicable state or court. For additional guidance, see Spoliation of Evidence (Commercial Litigation),Commercial Dispute Avoidance and Management, and Preserving Evidence (Federal). For a litigation hold notice that you can send to employees of a corporate client, see Litigation Hold Notice (Commercial Litigation).