Request to preserve evidence letter in California
Posted on Sunday, April 8, 2018 at 12:29 AM

A request to preserve evidence letter in California is the topic of this blog post.

A request to preserve evidence letter in California should be sent to counsel for all other parties to an action to request that they take all necessary steps to preserve all evidence and electronically stored information such as Twitter tweets, Facebook posts, digital messages, emails, text messages, video tapes, files, and other online communications and voicemail messages that may be contained on computers, tablets, flash drives, CD Rom discs, handheld devices, smartphones, and any other media, whether digital or non-digital.

A request to preserve evidence letter in California should be sent before, or concurrently with, all discovery requests.

Any attorney or party that fails to preserve all relevant evidence risks being subject to sanctions, costs, attorney fees, and adverse inference jury instructions and any other remedies that may be available under the law.

The California Supreme Court, in discussing the duty of an attorney in California to preserve evidence in the case of Cedars-Sinai Med. Ctr. v. Superior Court, (1998) 18 Cal. 4th 1, 12-13 stated that,

“Another important deterrent to spoliation is the customary involvement of lawyers in the preservation of their clients’ evidence and the State Bar of California disciplinary sanctions that can be imposed on attorneys who participate in the spoliation of evidence. As a practical matter, modern civil discovery statutes encourage a lawyer to marshal and take charge of the client’s evidence, most often at an early stage of the litigation. In doing so, a lawyer customarily instructs the client to preserve and maintain any potentially relevant evidence, not only because it is right for the client to do so but also because the lawyer recognizes that, even if the evidence is unfavorable, the negative inferences that would flow from its intentional destruction are likely to harm the client as much as or more than the evidence itself.”

The California Supreme Court also stated that,

“In addition, the risk that a client’s act of spoliation may suggest that the lawyer was also somehow involved encourages lawyers to take steps to protect against the spoliation of evidence. Lawyers are subject to discipline, including suspension and disbarment, for participating in the suppression or destruction of evidence. See Cal Bus. & Prof.Code, §6106. “The commission of any act involving moral turpitude, dishonesty or corruption … constitutes a cause for disbarment or suspension.”]; id., § 6077 [attorneys subject to discipline for breach of Rules of Professional Conduct]; Rules Prof. Conduct, rule 5–220 [“A member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or to produce.”]. The purposeful destruction of evidence by a client while represented by a lawyer may raise suspicions that the lawyer participated as well. Even if these suspicions are incorrect, a prudent lawyer will wish to avoid them and the burden of disciplinary proceedings to which they may give rise and will take affirmative steps to preserve and safeguard relevant evidence.”

There are sanctions in California for failure to preserve relevant evidence, of willfully destroying, deleting, or hiding it, can take the form of “adverse jury instructions”.  For more information review California Jury Instruction-CACI 204 which states:

 “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”

There are also potential criminal penalties for spoiling or deleting evidence that is relevant to a lawsuit as Penal Code § 135 creates criminal penalties for spoliation.

Sample request to preserve evidence letter in California. 

Attorneys or parties in California that would like to view or download a sample request to preserve evidence letter in California in Word format created by the author can see below.

Sample Evidence Preservation Letter in California by Stan Burman on Scribd

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.