Evidence Preservation Demand Letter
(CA)

Summary

This template is a letter that may be used by a party to demand that the opposing party (or potential opposing party) preserve evidence for use in a civil action in California superior court. This template includes practical guidance, drafting notes, and optional clauses. A party that contemplates bringing a lawsuit should consider sending a preservation demand letter to its prospective opponent and possibly to non-parties that possess or control documents, tangible things, and electronically stored information (ESI) potentially relevant to the contemplated lawsuit. A party to a lawsuit that destroys, alters, or conceals evidence that is or may be the subject of a discovery request has engaged in a misuse of the discovery process in violation of Cal. Code Civ. Proc. § 2023.010. Cal. Code Civ. Proc. § 2023.010(d), (f); Cedars-Sinai Med. Ctr. v. Superior Ct., 18 Cal. 4th 1, 12 (1998); R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 495 (1999). California law provides a broad range of sanctions for misuse of the discovery process. Cal. Code Civ. Proc. § 2023.030; Cedars-Sinai Med. Ctr., 18 Cal. 4th at 12. California law also provides that, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. Cal. Civ. Proc. Code §§ 2023.030(f), 2031.060(i). A document preservation letter alerts the recipient to the probable litigation and requests the recipient to take reasonable steps to preserve potentially relevant documents and ESI. A document preservation letter is intended to ensure that valuable evidence is not inadvertently destroyed or altered, as in the routine operations of a business. In the event that a party loses or destroys evidence, proof that it received a focused document preservation letter may contribute to proving that it did so with a culpable state of mind and increase the severity of a potential sanctions award. For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For more on evidence preservation procedures, see Evidence Preservation (CA). For discussion of evidence preservation issues relating to discovery of ESI, see E-discovery: Planning for and Conducting E-discovery (CA). For discussion of discovery sanctions, see Motion for Discovery Sanctions: Making and Opposing the Motion (CA).