Ride the Lightning

Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.

Craig Ball’s New Exemplar Preservation Letter: An Invaluable Tool

July 22, 2020

Attorneys often write terrible preservation letters. We know because we see them all the time. So we were delighted to learn (hat tip to Doug Austin's eDiscoveryToday blog) that Craig has updated "The Perfect Preservation Letter" that he published in 2006.

The updated letter is meant to be used sensibly. As Craig notes as the top of the letter, "What follows 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."

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 addresses topics such as Immediate Intervention, Suspension of Routine Destruction, Preservation in Native Forms, Metadata, Paper Preservation of ESI is Inadequate and more.

I was delighted to see the updated letter. Many lawyers crafted their preservation letters many years ago and they (and some of the technology they reference) are badly obsolete. Craig's letter should be great motivator to revisit your own preservation letter template.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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