TAG

Evidence preservation

Litigation holds, ESI, and spoliation exposure.

LIT-01 · 01

Demand Letters and Litigation Holds Before a Lawsuit Is Filed

8 MIN · LIT

One event usually creates both an opportunity and an obligation. This brief pairs the offensive document — the demand letter — with the defensive duty that the same facts switch on.

The duty to preserve attaches when litigation is reasonably anticipated, which is often earlier than the day counsel is retained or a complaint arrives.
Sending a demand letter puts the sender on notice too: it is strong evidence that the sender anticipated litigation from that date forward.
A hold notice is defensible when it identifies custodians, describes categories concretely, suspends auto-deletion, and is acknowledged and re-issued.

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LIT-03 · 02

Electronic Discovery: Preservation, Collection, Review, and Sanctions

8 MIN · LIT

Discovery of electronic evidence is where most civil litigation budgets are spent and where cases are quietly lost. This brief maps each stage to its cost driver and its sanctions exposure.

Rule 37(e), as amended in 2015, applies only when ESI that should have been preserved is lost and cannot be restored or replaced from another source.
Curative measures require a finding of prejudice; adverse-inference instructions, dismissal, or default require a finding of intent to deprive another party of the information.
Rule 26(b)(1) limits discovery to what is relevant and proportional, weighing six named factors including burden, resources, and importance to the issues.

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LIT-08 · 03

Depositions: Preparation, Permissible Objections, and Use at Trial

9 MIN · LIT

A deposition is the only chance to lock a witness into sworn answers before trial. This brief covers the Rule 30 limits, the narrow set of permissible objections, and what the transcript can do later.

Unless the parties stipulate or the court orders otherwise, a deposition is limited to one day of seven hours of examination.
Objections must be stated concisely and in a nonargumentative, nonsuggestive manner; the testimony is then taken subject to the objection.
A witness may be instructed not to answer only to preserve a privilege, enforce a court-ordered limitation, or present a motion to terminate.

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LIT-09 · 04

Protective Orders: Confidentiality Designations and Sealing Disputes

9 MIN · LIT

A protective order controls how the parties handle sensitive material in discovery. It does not decide what the public may see on the docket, and confusing the two is the most expensive mistake in this area.

Rule 26(c) requires a showing of good cause and a certification that the movant conferred, or tried to confer, before asking the court to act.
A stipulated protective order governs how parties treat material between themselves; it does not by itself authorize filing anything under seal.
Sealing implicates a public right of access to judicial records, so courts require a specific justification and narrowly drawn redactions.

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PRIV-09 · 05

Data Retention Schedules and Deletion Obligations

8 MIN · PRIV

Retention duties come from statute, contract, and litigation holds. Deletion rights pull the other way. This brief shows how to reconcile them in a schedule that actually runs.

Retention duties come from three independent sources — statute, contract, and the litigation-hold obligation — and each can override the schedule the business prefers.
State privacy laws give consumers deletion rights subject to enumerated exceptions, including legal compliance, security incidents, and existing legal claims.
A legal hold beats a deletion request: the exceptions exist precisely so that preservation duties are not violated by honoring a consumer's request.

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