Spoliation and Losing Evidence, law assignment help

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NKryya

Business Finance

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At the beginning of a case, many attorneys will send their clients a "preservation letter" in order to ensure that documents which may need to be disclosed during discovery are preserved in their original format. Your supervising attorney may have a template letter for you to use, or may ask you to assist with drafting such a letter, as information is always changing in terms of the types of information needed to be preserved. For this assignment, edit the attached preservation letter using the track changes feature or by using an alternative font color, so the letter will comply with the rules in your state regarding preservation of evidence and to make the letter easily understood by a client. Then, in a memo to your supervising attorney, Joe Smith, explain why you made the changes you made, and the purpose behind a preservation letter. Be sure to include a discussion about what could happen if documents were destroyed or were not preserved.

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Dear ___________: This will follow up our discussion regarding your preservation obligations for electronic information relating to your claims against OPPOSING PARTY. As we discussed, we want to make sure you are fully informed of the obligations imposed by the developing case law and rules in this area. The standard does not require that the information actually be relevant to the lawsuit or that it will actually be used in the lawsuit. Rather, the issue here is making sure that information which may be potentially relevant is not inadvertently destroyed. In this regard, the preservation of the data is really used to prove a negative (i.e., that no one destroyed damaging information). You must maintain hard copies of documents as well as all e-mail and other electronically stored information. Electronic information includes e-mail, voicemail, word processing documents, spreadsheets, databases, calendars, networks, computer systems (including legacy systems), servers, archives, backup and disaster recovery systems, tapes, disks, drives, cartridges, other storage media, laptops, internet records, web pages, personal computers, and other information storage devices. Retain any copies you have on any storage medium, and do not overlook sources of data such as portable hard drives, memory cards, “thumb drives,” blackberry, personal digital assistants, mobile telephones, iPads®, iPhones®, iPods®, tablet pcs or readers and smartphones. The term “documents” includes handwritten notes, drafts, tabulations, calculations, summaries, and work papers; it is not limited only to “formal” or “final” documents. Examples of documents (whether in electronic or hard copy) that should be retained include letters, correspondence, memoranda, reports, tabulations, calculations, invoices, vouchers, ledgers, journals, external and internal literature, books, notes, schedules, worksheets, plans, minutes, bulletins, brochures, catalogs, notices, press releases, transcripts, calendars, diaries, charts, forecasts, instant messages, text messages, sms messaging, and drafts of all such documents that mention or relate to the subject matter of your claim. This list is not exhaustive; it is provided by way of example only, and all documents relating in any way to the topics discussed in this memorandum must be preserved. Furthermore, all online profiles, comments, postings, messages (including without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams and blog entries), photographs, videos, emails and online communications (including those posted by you or anyone on your behalf on Facebook, Myspace, Twitter and the like), must not be deleted, removed, destroyed or in any way changed. The failure to comply with this preservation obligation can result in sanctions against the noncomplying party for spoliation of evidence. Those sanctions could include monetary penalties, adverse jury instructions (e.g., that the failure to preserve meant the party destroyed damaging evidence), default judgment against you or dismissal of your claims. We want to make sure that you have preserved any relevant electronic materials. You and ANYONE ELSE WITH INFORMATION would likely be “key players” in any litigation with OPPOSING PARTY, and must preserve any and all materials. Therefore, please make sure that you are preserving all email, electronic or paper documents, and information stored on any of the media mentioned above. The issue here is to make sure that information which may be potentially relevant is not inadvertently destroyed. We understand that these categories of information are broad; however, we do not know at this time which specific documents or categories of documents may be requested in the future. As a result, we must ensure that all documents of potential relevance are preserved. If you are not sure whether particular documents or records should be retained, please err on the side of caution; you must not destroy, discard, or delete those documents. If you have questions as to whether particular documents should be preserved, please contact this office. Sincerely,
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Explanation & Answer

Attached.

Dear ___________:
This will follow up our discussion regarding your preservation obligations for electronic
information relating to your claims against OPPOSING PARTY. As we discussed, we want to
make sure you are fully informed of the obligations imposed by the developing case law and
rules in this area.
Please ensure that you do not alter, dispose, or tamper with any of the material that is admissible
as part of the evidence as these materials will be discoverable as well as admissible in the
litigation. Any act to preserve the evidence in this case will lead to the appeal of spoliation
instruction in the course progress of this litigation regarding the matter.
The standard does not require that the information actually be relevant to the lawsuit or that it
will actually be used in the lawsuit. Rather, the issue here is making sure that information which
may be potentially relevant is not inadvertently destroyed. In this regard, the preservation of the
data is really used to prove a negative (i.e., that no one destroyed damaging information). We
require you to preserve all of the following evidence materials related to the lawsuit;









You must maintain hard copies of documents as well as all e-mail and other
electronically stored information.
Electronic information includes e-mail, voicemail, word processing documents,
spreadsheet...


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