Document and Evidence Preservation Demand Letter
(WA)

Summary

This template is a letter for use in demanding that an actual or potential adverse party in a Washington civil action preserve documents or other evidence that may potentially be relevant to the litigation. This template includes practical guidance, optional paragraphs, and drafting notes. 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 counsel is concerned that documents or other evidence, including electronically stored information, may be lost or destroyed before formal discovery can take place. Particularly where a complaint 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. A letter putting the other party on notice that certain evidence is considered relevant and should be preserved is important to preserve the possibility of requesting sanctions in the event that the other party ultimately fails to produce that evidence during formal discovery. In contrast to some other jurisdictions, Washington does not recognize a general duty to preserve evidence in anticipation of potential litigation, but courts may potentially sanction the other party if the missing evidence is sufficiently relevant to the case and the other party was “culpable” in failing to produce the evidence. See Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 468–470, 360 P.3d 855 (2015). A letter such as this is one factor the courts may consider in determining the culpability of the recipient party in failing to preserve and produce the evidence. For further discussion of procedures and best practices regarding preservation of evidence, see Preserving Evidence (WA).