Jul 17, 2020

What is a Demand for Preservation of Evidence Letter?


A demand for preservation of evidence letter mailed to the future personal injury defendant remains an underused tool in the personal injury profession. However, it is vital for many reasons we will discuss below. Moreover, it tells people you are going to file a claim for personal injury or death. The defendant is now said to be on notice. These are particularly helpful in landlord-tenant cases, and employment law cases. It will be hard for them to lose evidence and later say they had no duty to preserve this evidence independently.

You will need to demand that the potential defendants preserve all documents and other things, such as hard drives, electronic images pr videos, etc.. But the more specific you are, the better. So you will specify in the letter that the future defendant must maintain papers, and things, like timesheets, pictures, cell phones, and dispatch records, and so forth.

Later, in discovery, the personal injury plaintiff will demand these items, along with the names, addresses, and contact information of the custodian of any evidence. At the trial, or during settlement negotiations, if this evidence would have been helpful to the plaintiff, but had been withheld any new evidence later used by the defendant to exculpate their liability, shall be viewed with distrust.

Don't Tell Me Show Me Concept
Don't Tell Me Show Me Concept.

The determination of fault in civil tort claims is of the utmost importance to a severely wounded victim. But proving a personal injury case is the plaintiff's burden. During the period before the lawsuit is filed, the defendant may try and hide or destroy evidence. If they didn't know they were being sued, it might have just been an innocent part of regular housekeeping for some businesses and others. However, it remains available a vital tool for putting people on notice so they won't destroy or misplace evidence. Let's use this example to help people understand.

If the plaintiff intends to sue ARCO for a slip and fall accident at their gas station due to poor lighting, for example, there may be a videotape. But typically, after three days, that evidence gets destroyed. How do you get that evidence? Of course, in other cases, the person with custody of the evidence may not even be a potential defendant. Go ahead and notice them anyways.

There are many reasons for notifying non-parties to preserve evidence. Most of all, it remains essential to determine who is at fault for the accident and to put them on notice. Sometimes, in cases of a hit and run, for example, you may only have the numbers of the defendant driver's vehicle license plates and have no way to run them through the DMV computer.

By the time the police track the vehicle down, it may already have been repaired. If so, where is the evidence of repairs, and were photos taken by the repair shop? Obviously, letting people know they have your evidence, and they may have legal proof in a criminal and civil case is essential. Even if these witnesses are not good Samaritans, at least they are on notice that they may have a legal duty in a pending case! Also, it tells them they may be called as a witness. Moreover, it remains a powerful tool in displaying to defendants that you have a solid case.

So the next logical step is to write all potential witnesses and defendants a letter documenting the basic facts of the accident (party names, dates, times, and location), and your injuries. But how do I notify a personal injury defendant when I have no lawyer? Plaintiff has two options, hire a lawyer, or two, use a guide like the one below and "do it yourself.

Powerful, Withheld Evidence, "Shall Viewed With Distrust"?

Yes, this is correct. After properly demanding the preservation of documents and things, the plaintiff can seek a jury instruction regarding destroyed or lost evidence occurring after the defendant's receipt of the plaintiff's preservation letter.

"If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." (Source).

As noted above, the "shall" be viewed with distrust provision would not apply if the evidence had been turned over. In a way, this Evidence Code section seeks to deny a party the right to benefit from their own secretive, evil deeds. In fact, in some cases, the court "In Limine" may order the exculpatory evidence or more satisfactory evidence to the plaintiff's case thrown out!

If vital evidence to the defendant's case will now be disregarded, the defendant may seek to parlay and offer far more favorable settlement terms. As can be seen, Evidence Code Section 412 is a powerful tool for either party as a sword as well as a shield.

You will also notify the driver's company, if possible, and your insurance company. But not all cases remain cut and dry. For example, workplace injuries will have different lines of determining who may be at fault. And some are relatively straightforward. But others need the expertise of a skilled attorney.

Why Make Sure and Keep Copies?

When you have figured who you believe to be at fault, you must craft the letter to send to them. Make sure that you keep copies of the letter for your record. And if possible, get it notarized and send it certified mail, return receipt requested. And send a second copy via regular, U.S., First Class Mail. By submitting such notification, under the mailbox rule, the parties will be on notice. Your message will 'state the facts' and not blame any party for the incident.

Your evidence or their admission will do that for you. Sending the letter registered, or certified mail, return receipt requested is a good idea, even though the "Mailbox Rule" applies. In the crucial hours and days after an accident, it is essential not to dawdle. Don't miss any statutes of limitations of insurance filing deadlines.

Send out the preservation of evidence letters within several weeks of the accident.  As can be seen, a demand to preserve evidence can be a powerful tool for personal injury plaintiffs. And these demands should be sent to anyone who may have evidence, not just potential parties to the lawsuit. Plaintiffs are encouraged not to it themselves.

However, sometimes they have no choice due to timing or another reason. While the plaintiff may not file a complaint in court right away, later on, an attorney can help guide the plaintiff to know their legal rights in these cases. And that preservation of evidence letter will be a great way for the new lawyer to seek motions limiting the defendant's evidence, which could effectuate a more favorable settlement.

E-Discovery Duty to Preserve.

There is a duty to preserve electronically stored information (ESI) in many California court cases. ESI includes data, documents, and materials. Even if it is not admissible directly, it could lead to other admissible evidence. You must not destroy electronically stored information, alter or conceal it. Anything is potentially relevant evidence. So it will likely be a part of litigation.

This means that counsel must act reasonably in the preservation of ESI. The duty extends to many classes of people. These classes include the client, parents, attorneys, partners, employees, officers, directors, divisions, subdivisions, contractors, accountants, auditors, and subsidiaries.

Preservation of Evidence Letter

In PI cases, it is critical to send out a "preservation of evidence" letter at the outset to all interested parties. But a legal hold is essential for both the counsel for the plaintiff or the defendant.

The attorney for the plaintiff should send a letter to any of the potential clients or their lawyers. So this will be a notice of the filing of a lawsuit. And getting a preservation order from the court is often the smart move.

Also, don't leave the preservation of evidence up to the client or their IT department. Metadata remains easily alterable. And copying of files onto paper is another way to alter these electronic documents. Also, variations in the electronically stored information can prove the authenticity or integrity of the stored data.

There have been sanctions for failure to preserve ESI. It can result in spoliation penalties. It can also result in "doomsday sanctions." If there is a failure to protect the electronically stored data, it can be devastating to the client.

A careless, intentional, or reckless deletion matters not. The attorney failing to ensure the preservation order or litigation hold can be in trouble. Also, the State Bar Association could disbar or suspend the lawyer.


What Does the Law Require?

The law requires each party to preserve all potentially discoverable electronically saved information. These laws carry duties imposed that apply to each party and any third parties.

  • ESI cannot be altered or deleted once on notice. File fragments or remnants of any altered or deleted information remains discoverable.
  • Procedures must be enacted to protect electronically stored information, including any related metadata from data compression, deletion, overwriting, or rotation.
  • ESI must be protected from procedures such as disk defragmentation, reformatting, and other types of optimization routines.
  • Do not dispose of data storage devices. Media often gets replaced during upgrading, so keep that in mind.
  • All application programs and utility program copies must be preserved. Anything used in accessing, processing, reading, copying, or displaying remains discoverable.

Also, professionals can make forensic copies of any potential electronically stored evidence. So that way, you can avoid confiscating USB drives, iPods, laptops, or other equipment. So now both sides can continue the business. Most of all, maintain a proper chain of custody record for the ESI.

This custody applies in particular to loose and removable items like Blackberry’s. Maintaining logs remains vital. Then it may be possible to show the judge the lateness was due to an innocent error. At least that way, it wasn't intentional.


ESI and Metadata.

Metadata can be critical, which is data about other data. This data was not an issue with paper documents since the data would have been in the record, such as the date and author. Electronically stored information has changed discovery rules. For example, metadata, online searches for porn, can embarrass you.

Metadata issues can include:

  • Tracking is potentially damaging changes to documents.
  • Modifications of document creation dates, accessed, the numbers of revisions, and the total amount of time for editing remains discoverable.
  • The ability to follow the internet route of email by viewing the full header.
  • This can identify those people blind copied on an email (BCC).
  • Knowledge of comments and secret formulas in spreadsheets.

What About the Digital Fingerprint?

Metadata has a type of digital fingerprint that can change any part of a document, including other metadata. The most significant benefit of metadata is the advantage of doing more effective searches. Some metadata remains accessible in "properties" in MS Word Documents. Also, some emails in the "to" and "from" fields are available. Once learned, these rules can help you win.


Without an agreement, you have to turn over everything on your hard drive. The one problem that exists is unless you request the metadata, it is possible only to receive paper documents. So you must ask for the data in electronic form. If not, you will be digging through piles of paper. To specify that the file format is a raw native file format, the defendant must include the metadata.

Most of all, the preservation of evidence letter sends a powerful shot across the other party's bow. It lets them know that you know your rights. To learn more about your rights, contact Ehline Law Firm Personal Injury Attorneys, APLC at (213) 596-9642.

If you want to learn more about demands for preservation of evidence, or need a template, feel free to reach out to us by using our online contact us form.