Ride the Lightning

President Trump’s Lawyers and Craig Ball’s “The Perfect Preservation Letter”

January 8, 2018

Thanks to my friend Craig Ball for making me laugh so hard I cried when I read his blog post on Saturday morning.

What was so funny? Surely none of my readers missed the accelerated publication of Fire and Fury: Inside the Trump White House by Michael Wolff and its excerpts in New York magazine. And I imagine that everyone reading this post knows that Trump's Beverly Hills lawyers sent a letter to Wolff and his publisher Henry Holt and Co., Inc. threatening a libel suit and seeking to block publication of the book saying in part:

"Mr. Trump hereby demands that you immediately cease and desist from any further publication, release or dissemination of the Book, the Article, or any excerpts or summaries of either of them, to any person or entity, and that you issue a full and complete retraction and apology to my client as to all statements made about him in the Book and Article that lack competent evidentiary support."

Craig learned of the letter when it circulated among the Council of the Computer and Technology Section of the Texas Bar with the suggestion to check out the letter's detailed request for ESI preservation. This is where I began laughing as Craig said, "Reading it, I was struck by how thorough, polished, yet dated the language seemed. It was eerily familiar, and with good reason: of the letter's eleven pages, I'd written more than half of them. The text aligned—verbatim—with the exemplar letter in the Appendix of my well-worn article entitled "The Perfect Preservation Letter," something I penned a dozen years ago, before Facebook, the Cloud and iPhones."

To be sure, the language was not stolen, as Craig had written the exemplar letter and shared it freely to help lawyers draft preservation demands.

But the authors of the letter ignored Craig's common sense recommendation that the language of the demand be tailored to the evidence and the issues. The preface to the letter says "What follows isn't the perfect preservation letter for your case, so I don't recommend adopting it as a form. I include it here as a drafting aid and to flag issues unique to EDD [Electronic Data Discovery]. You should tailor your electronic discovery efforts to the issues, parties and systems in your case. Be thorough insofar as data may be relevant, but eschew the "everything and the kitchen sink" approach. Use common sense. If your preservation demand effectively requires your opponent to pull the plug on every computer, what good is it? If you can't articulate why particular ESI is potentially relevant, perhaps you shouldn't demand its preservation."

Craig goes on to say, "The preservation letter demands your best effort for a host of reasons. It's the basis of your opponent's first impression of you and your case. A well-drafted preservation letter speaks volumes about your savvy, focus and preparation. An ill-drafted, scattergun missive suggests a formbook attorney who's given little thought to where the case is going. A letter that demonstrates close attention to detail and preemptively slams the door on cost-shifting and "innocent" spoliation bespeaks a force to be reckoned with and signals a case that deserves to be a settlement priority. The carefully-crafted preservation letter serves as a blueprint for meet and confer sessions and a touchstone for efforts to remedy destruction of evidence."

My laughter intensified as Craig pointed out that the lawyers' demand letter mentions Zip disks but not social media content. How is it possible that Trump's lawyers forgot tweets? And as Craig says, "Who still uses Lotus 123?" Clearly, this letter does not reflect well on the attorneys' "savvy, focus and preparation."

It really does crack me up to think that the President's lawyers would utilize so much of an exemplar document that was twelve years old. While indeed flattering to Craig, he notes that some freshening of the document would have been wise. Indeed, sir, indeed.

The only thing that might have amused me more is seeing the bill for preparation of the letter.

Thank you for the early morning laughter Craig!

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