Attorneys often ask other attorneys for advice on how to assist their clients in complying with the duty to preserve electronically stored information (ESI) and regularly ask to see a “form” preservation letter. Many attorneys mistakenly believe that such a form letter is a good start in satisfying their preservation obligations. However, no such letter exists—and for good reason.

Severe sanctions are placed on litigants who fail to cease the destruction of documents pursuant to retention policies once there is a reasonable likelihood of future litigation or a governmental investigation. Sanctions are imposed not only for willful bad-faith destruction but also for actions such as a failure to suspend auto-deletion of email. Much-needed proposed amendments to the Federal Rules of Civil Procedure to limit sanctions to willful conduct exist, but have not yet been adopted. Further, sanctions may extend beyond costs and attorney fees to include adverse inference jury instructions and even the granting of judgment or dismissal.

Compliance with the duty to preserve requires an “active partnership” between the attorney and the client to address the client's individual retention protocols, requirements, capabilities and limitations. As such, an attorney cannot rely on any letter, much less a form letter. Courts have held that without doing more to engage the client, the attorney simply cannot accurately represent that a reasonable effort has been made to locate, preserve, review and produce relevant documents.