Document and Evidence Preservation Demand Letter
(OK)

Summary

This template is a letter that may be used to demand that an opposing party preserve evidence, including documents and electronically stored information (ESI), that may be relevant to potential or pending civil litigation in Oklahoma district court. This template includes practical guidance, drafting notes, and an optional clause. The purpose of a preservation demand letter is to ensure the retention of evidence, such as relevant documents or ESI, for future discovery. In the event that the opposing party does not preserve the evidence as requested, a letter such as this may be useful when seeking discovery sanctions for spoliation of evidence. See, e.g., Barnett v. Simmons, 197 P.3d 12, 20 (Okla. 2008) (duty to preserve evidence relevant to pending or potential litigation); Akins v. Ben Milam Heat, Air & Elec., Inc., 451 P.3d 166, 175 (Okla. Civ. App. 2019) (same); see also Okla. Stat. tit. 5, ch. 1 app. 3-A, rule 3.4(a) (attorney's ethical obligation not to obstruct other party's access to evidence or to alter, destroy, or conceal document or other material having potential evidentiary value); Okla. Stat. tit. 12, § 3237(B) (authority for discovery sanctions). This letter may be sent in situations where either the action has not yet been filed, or where the action has recently been filed, but formal discovery has not yet commenced, if you are concerned that documents or other evidence, including ESI, may be lost or destroyed before formal discovery can take place. Particularly where a petition has not yet been filed, a specification of the items or types of items to be preserved by the recipient should be included. The letter may be sent to the actual or potential adverse party or to a third party in possession of the potentially relevant evidence. If the recipient is known to be represented by counsel, the letter should be sent to the recipient's attorney as well as the recipient. For a litigation hold notice template that may be used to notify one's own client to preserve evidence relating to pending or potential litigation, see Litigation Hold Notice (OK). For more on discovery planning, including evidence preservation procedures, see Discovery Planning and Strategy (OK). For discussion of discovery sanctions, see Motion for Discovery Sanctions: Making and Opposing the Motion (OK).