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Another Spoliation Letter

By Mark Zamora

Working on a more general letter. Here is what we have had success with in our office:

 

I represent Mr. X, Representative Plaintiff in the above-styled matter. Contemporaneous with receipt of this letter your counsel has also been served with a draft of the Complaint (hereinafter the 'Complaint') which will be filed in the Superior Court of Red County.

 

            Based upon the foregoing, this will serve as legal notice that you and your employees, and agents are required to immediately take those actions necessary to fully preserve and protect certain evidence as follows:

 

1.

By this Spoliation Notice, you and your employees, agents, and attorneys are hereby given formal notice not to destroy, conceal or alter any paper or electronic files and other data generated by and/or stored on its computers and storage media (e.g., hard disks, floppy disks, backup tapes), or any other electronic data, relating to identification of members of the proposed Class.

 

2.

            The proposed Class comprises citizens of Georgia that received facsimile

 

 

advertisements from you or on your behalf during the Class Period (as that term is defined in Paragraph 24 of the draft Complaint) where there was no prior express permission to receive such facsimiles or where there was no prior Established Business Relationship ('EBR') as that term is defined in the Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005, Report and Order and Third Order on Reconsideration, CG Docket No. 02-278, CG Docket No. 05-338 (Adopted: April 5, 2006, Released: April 6, 2006). After filing of the Complaint, you will be served with Discovery Requests requesting production of documents relating to the transmission of facsimile advertisements to the proposed Class.

3.

You also required to timely place any third party and/or agent that was involved with transmission of the facsimile advertisements to the proposed Class on formal notice of the necessity to preserve all of the foregoing data in their possession.

4.

Your failure, or the failure of your employees, agents, and attorneys to comply with this Notice can result in severe sanctions being imposed by the Court for spoliation of evidence or potential evidence. Bouve and Mohr LLC v. Banks, 2005 Ga. App. Slip (A05A0687); R.. A.  Siegel Co. v. Bowen, 246 Ga. App. 177, 179 (2), 539 S.E.2d 873 (2000).

5.

Through Discovery Representative Plaintiff expects to obtain from you and your employees, agents, and attorneys a number of documents and things, including files stored on your or your agents' computers and computer storage media, which will be highly relevant inter-alia in further identifying members of the proposed Class. In order to avoid Spoliation, you and your employees, agents, and attorneys, will need to provide the data requested on the original media and not reuse any media to provide this data.

 

6.

Although Representative Plaintiff may bring a motion for a Court order preserving documents and things from destruction or alteration, it is the obligation of you and your employees, agents, and attorneys to preserve documents and things for Discovery in this case arises in law and equity independently from any order on such motion. Id. 

 

7.

Electronic documents and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents.  Therefore, even where a paper copy exists, Representative Plaintiff will seek all documents in their electronic form along with information about those documents contained on the media. Representative Plaintiff will also seek paper printouts of only those documents that contain unique information after they were printed out (such as paper documents containing handwriting, signatures, marginalia, drawings, annotations, highlighting and redactions) along with any paper documents for which no corresponding electronic files exist.

8.

Representative Plaintiff's Discovery Requests will ask for certain data on the hard disks, floppy disks and backup media used in your computers, some of which data is not readily available to an ordinary computer user, such as 'deleted' files and 'file fragments.' Because electronic data and storage media are subject to Representative Plaintiff's Discovery Requests, you and your employees, agents, and attorneys are obligated to maintain and not alter or destroy such electronic data and storage media including, but are not limited to, the following:

 

INTRODUCTION

DESCRIPTION OF FILES AND FILE TYPES SOUGHT

9.

All digital or analog electronic files, including 'deleted' files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by you and your employees', agents', and attorneys' computers and their backup media (e.g., other hard drives, backup tapes, floppies, Jaz cartridges, flash drives, and CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not. More specifically, you and your employees, agents, and attorneys are to preserve all e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all CAD (computer-aided design) files, including drafts and revisions; all presentation data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management and personal information management (PIM) software (such as Microsoft Outlook or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as PalmPilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web-browser-generated history files, caches and 'cookies' files generated at the workstation of each employee and/or agent in your employ and on any and all backup storage media; and any and all other files generated by users through the use of computers and/or telecommunications, including but not limited to voice mail. Further, you and your employees, agents, and attorneys are to preserve any log or logs of network used by employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of your backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit 'mirror' evidentiary image copy of the storage media of each and every personal computer (and/or workstation) and network server in the control and custody of you and your employees, agents, and attorneys, as well as image copies of all hard drives retained by you and no longer in service, but in use at any time from July 1, 2005 through October 31, 2006.

 

10.

You and your employees, agents, and attorneys are not to pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made. 

11.

            You and your employees, agents, and attorneys are to preserve and not destroy all

passwords,  decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction software, and any and all other information and things necessary to access, view and (if necessary) reconstruct the electronic data Representative Plaintiff will be requesting through discovery.

 

12.

            In addition to the preservation of the foregoing data, you and your employees, agents, and attorneys should specifically preserve the following:

 

A. Business Records: All documents and information about documents containing backup and/or archive policy and/or procedure, document retention policy, names of backup and/or archive software, names and addresses of any offsite storage provider.

 

i.                    All e-mail and information about e-mail (including message contents, header information and logs of e-mail system usage) {sent or received} by the following persons relating, directly or indirectly, to the transmission of     facsimiles to citizens of Georgia advertising the products or services of xxx from the

    period July 1, 2005 through October 31, 2006:

      

 

ii.         All other e-mail and information about e-mail (including message contents,

                   header information and logs of e-mail system usage) containing information

                   about or related to:

 

(a)       The transmission of facsimiles to citizens of Georgia advertising the

products or services of XXXX

 

iii.        All databases (including all records and fields and structural information in

             such databases), containing any reference to and/or information about or

             related to:

 

 (a)      The transmission of facsimiles to citizens of Georgia advertising the

products or services of Danny Diulus (including under the trade name Georgia Home Services) from the period July 1, 2005 through October 31, 2006.

 

iv.                All logs of activity (both in paper and electronic formats) on computer systems and networks that have or may have been used to process or store electronic data containing information about or related to:

 

  (a)     The transmission of facsimiles to citizens of Georgia advertising the

products or services XXX

 

v.          All word processing files, including prior drafts, 'deleted' files and file

             fragments, containing information about or related to:

 

 

 

  (a)     The transmission of facsimiles to citizens of Georgia advertising the

products or services of XXX

 

vi.                With regard to electronic data created by application programs which process financial, accounting and billing information, all electronic data files,

including prior drafts, 'deleted' files and file fragments, containing

                  information about or related to:

 

    (a)   The transmission of facsimiles to citizens of Georgia advertising the

products or services of xxzzz

              

 

B. Online Data Storage on Mainframes and Minicomputers: With regard to online storage and/or direct access storage devices attached to you and your employees', agents', and attorneys' mainframe computers and/or minicomputers: you and your employees, agents, and attorneys are not to modify or delete any electronic data files, 'deleted' files and file fragments existing at the time of this Spoliation Notice's delivery, which meet the definitions set forth in this Spoliation Notice, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of this litigation.

 

 

C. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes and Other Removable Electronic Media: With regard to all electronic media used for offlinestorage, including magnetic tapes and cartridges and other media that, at the time of this Spoliation Notice's delivery, contained any electronic data meeting the criteria listed in Section A above: you and your employees, agents, and attorneys are to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with you and your employees', agents', and attorneys' computer systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes and all other media, whether used with personal computers, minicomputers or mainframes or other computers, and whether containing backup and/or archive data sets and other electronic data, for all you and your employees', agents', and attorneys' computer systems.

 

D. Replacement of Data Storage Devices: You and your employees, agents, and attorneys are not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or upgrade and/or other reasons that may contain electronic data meeting the criteria listed in Section A above.

 

E. Fixed Drives on Stand-Alone Personal Computers and Network Workstations: With regard to electronic data meeting the criteria listed in Section A above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this Spoliation Notice's delivery: you and your employees, agents, and attorneys are not to alter or erase such electronic data, and not to perform other procedures (such as data compression and disk de-fragmentation or optimization routines) that may impact such data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve copies during the pendency of this litigation.

 

F. Programs and Utilities: You and your employees, agents, and attorneys are to preserve copies of all application programs and utilities, which may be used to process electronic data covered by this Spoliation Notice.

 

G. Log of System Modifications: You and your employees, agents, and attorneys are to maintain an activity log to document modifications made to any electronic data processing system that may affect the system's capability to process any electronic data meeting the criteria listed in Section A above, regardless of whether such modifications were made by employees, contractors, vendors and/or any other third parties.

 

 

H. Personal Computers Used by Your Employees and/or Their Secretaries and Assistants: The following steps should immediately be taken in regard to all personal computers used by you and your employees, agents, and attorneys and their respective employees and/or their secretaries and assistants.

 

1. As to fixed drives attached to such computers: (i) a true and correct copy is to be made of all electronic data on such fixed drives relating to this matter, including

 

2. all active files and completely restored versions of all deleted electronic files and file fragments; (ii) full directory listings (including hidden files) for all directories and subdirectories (including hidden directories) on such fixed drives should be

      written; and (iii) such copies and listings are to be preserved until this litigation

reaches its final resolution.

 

3. All floppy diskettes, magnetic tapes and cartridges, and other media used in connection with such computers prior to the date of delivery of this letter containing any electronic data relating to this matter are to be collected and put into storage for the duration of this litigation.

 

I. Evidence Created Subsequent to This Spoliation Notice: With regard to electronic data created subsequent to the date of delivery of this Spoliation Notice, relevant evidence is not be destroyed and you and your employees, agents, and attorneys are to take whatever steps are required to avoid destruction of evidence.

 

13.

In order to assure that you and your employees', agents', and attorneys' obligation to preserve documents and things will be met, you are requested to immediately forward a copy of this Spoliation Notice to all persons and entities with custodial responsibility for the items referred to in this Spoliation Notice. You are requested to confirm to the Representative Plaintiff's counsel, in writing on or before [DATE], that the foregoing transmittals of this Spoliation Notice have been made

Full post as published by Trial Lawyer Resource Center on October 11, 2010 (boomark / email).