Preservation of Data Letter

A sample Preservation Letter. 

Remember that you will want to make certain that all data is preserved in its original format.  This is so the metadata can be more easily obtained.  This letter is intended to protect ESI (Electronically stored information)

XXXXX and Associates, P.S.

749 Some Street, Suite 400, Your Town, WA 98416

Phone:  (253) 677-1245                                                                                                     Janis Miller, Esq

---

April 22, 2012

 

Mr. XXX XXX, President,

Some sort of company

300 Stellar Jay Way

Your Town, WA 98111

 

 

Re:    XXXX v. XXXXX           Case No. CV-11-0046

Preservation of Electronic Discovery

 

 

Dear Mr. %%%%%%%:

 

Oh behalf of our client, Mr. XXXXX XXXXX we do hereby demand that you do now preserve all documents, tangible things and electronically stored information (“ESI”) potentially relevant to any issues in the above entitled matter.

 

You should anticipate that much of the information subject to disclosure or responsive to discovery in this matter is stored on your current and former computer systems and other media and devices (such as but not limited to: personal digital assistants, voice-messaging systems, and online repositories).  Electronically stored information (hereinafter, “ESI”) should be afforded the broadest possible definition and includes potentially relevant information electronically stored as:

 

• Digital communications (i.e., e-mail, voice mail, instant messaging);

• Word processed documents (i.e., Word or WordPerfect documents and drafts);

• Spreadsheets and tables (i.e., Excel worksheets);

• Accounting Application Data;

• Image and Facsimile Files (i.e., .PDF, .TIFF, .JPG, .GIF images);

• Contact and Relationship Management Data (i.e., Outlook);

• Calendar and Diary Application Data;

• Online Access Data (i.e., Temporary Internet Files, History, Cookies);

• Presentations (i.e., PowerPoint);

• Network Access and Server Activity Logs; and

• Back Up and Archival Files

 

ESI resides not only in areas of electronic, magnetic and optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You should take due care to preserve potentially relevant evidence from both these sources of ESI, even if you do not anticipate producing such ESI.

 

The demand that you preserve both accessible and inaccessible ESI relevant to this matter is limited, reasonable, and necessary.   For good cause shown, the court may order production of the ESI, even if it finds that it is not reasonably accessible. Accordingly, even ESI that you deem reasonably inaccessible must be preserved in the interim so as not to deprive our client of his right to secure the evidence, or the Court of its right to adjudicate the issue.

You are directed to immediately initiate a litigation hold for potentially relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and assess compliance with such a hold. You are further directed to immediately identify and modify or suspend features of your information systems that, in routine operation, operate to cause the loss of potentially relevant ESI.

You should anticipate that certain ESI will be sought in the form or forms in which it is ordinarily maintained. Accordingly, you should preserve ESI in its native format.  Do not use any program that will remove or degrade the ability to search the ESI making it difficult or burdensome to access or use the information efficiently in the litigation. 

You should anticipate the need to disclose and produce system and application metadata and take steps to preserve it. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file’s name, size, location and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, draft language, commentary, collaboration and distribution data and dates of creation and printing. For e-mail, metadata includes all header routing data and attachment data, in addition to the To, From, Subject, Received Date, CC and BCC fields.

Please preserve all documents and other tangible items that may be required to access, interpret or search potentially relevant ESI, including logs, control sheets, specifications, file lists, network diagrams, flow charts, instruction sheets, data entry forms, abbreviation keys, user ID and password rosters.

Please confirm that you have taken the steps outlined in this letter to preserve ESI and tangible documents potentially relevant to this action. If you have not undertaken the steps outlined above, or have taken other actions, please describe what you have done to preserve potentially relevant evidence.

If you should have any questions, contact my office immediately.

 

Very Truly Yours,

 

                                                             Ms. Jane I Awesome, Esq.,

                                                             XXXXXX and Associates

 

 

JM:k90

Sample Opinion Letter

 

At least I consider this a decent example.  I received a grade of A on it.  --K

Background:  Client possessed a partially handwritten will from a deceased spouse and they wished to begin probate.  I researched Texas state statues and case law to obtain what is wholly and completely my opinion. 

AWESOME LAW

151 Pacific Ave.

Huston, TX 00001

Telephone:  253.555.1212

Fax:  253.555.4110                                                     E-mail:  janeiawesome@awesomelaw.com

 

March 23, 2012

Mrs. XXXX XXXXX

4523 N. 6^th Ave.
Huston, TX 00001

Re:  Thomas XXXXX's last will and testament and the possible probate of the will.

Dear Mrs. XXXX:

You contacted our office regarding the will hand written by your husband Mr. Thomas XXXX and the issues regarding it being accepted for probate.  I have been reviewing statutory law and case law regarding handwritten wills. 

On March 10, 2012 you brought in a handwritten will dated and signed by the decedent on December 26, 2011 to our offices and as the spouse of Mr. XXXX you wish to begin the process of distributing his assets.  Mr. XXXX passed away on January 30, 2012.  Mr. XXXX was purported to be of sound mind until his death. 

According to our research, which includes both statutory and case law, we have concluded that Mr. XXXX’s handwritten will face some issues when moving forward with the probate process.

I reviewed Tex. Prob. Code. Ann. §59 (Vernon 1980) which states that every last will and testament shall be in writing and if not in the handwriting of  the testator must be attested to by at least two (2) credible witnesses.  Your husband’s will is in his hand writing, minus a small portion completed by a trusted neighbor friend, attested to in the affidavit which is included in the will, yet his will also lacks the needed two witnesses.

In addition, I looked at Tex. Prob. Cade. Ann. §60 (Vernon 1980).  This law pertains to handwritten wills and makes the further exception that if the document is fully written by hand, the attesting by two subscribing witnesses may be dispensed with as long as it has an affidavit by the testator that it is indeed their last will.  The statute requires that it be written “wholly by hand” and your husband’s will lacks this aspect. 

In Dean v. Dickey, 225 S.W.2d 999 (1949 Tex. App.) the Texas Court of civil appeals affirmed the trial court's admission of the handwritten will into probate because it demonstrated testamentary intent by disposing of property.  At issue in this case was whether a typewritten will could be considered a holographic will within the meaning of Tex. Rev. Civ. Stat. art. 8283, which permitted holographic wills to be witnessed by only one person.  They also further stressed the importance of the term “written wholly in the handwriting of the testator.”  The court affirmed the judgment of the trial court in Dean v. Dickey by affirming the probate court's denial of the proponent's request for probate of a typewritten will.

I hope this answers any questions or concerns that you may have regarding the will and beginning the probate process.  With the affidavit attached to the will, statutory and case law both show that moving forward would be difficult. 

Please do not hesitate to contact me with any questions you may have.

Yours Sincerely,

________________________________

Jane I. Awesome, TBA #00001

Attorney at Law

 

JIA/k23

 

U.S. v. Collier

Brief Background:

Case Citation:            U.S. v. Collier, 29 M.J. 365 (CMA 1990).

 

Parties:                       United States, Appellee

 

                                    William H. Collier, Jr., Appellant

 

Facts:

Collier, Appellant, was convicted by a special court martial for failure to willfully leave, disobeying a lawful order from a warrant officer, and dereliction of duty in violations of Articles 86, 91, and 92 in the Uniform Code Of Military Justice (UCMJ). 

 

Procedural History: 

·         U.S. Court of Military Appeals

·         United States Army Court of Military Review

·         25th Infantry Division (Light)--Special Court Martial-- Schofield Barracks, Hawaii

 

Issue:

Did the judge err by failing to direct his own motion on the issue of affirmative defense of abandonment of office by the warrant officer?

 

Holding: 

The court rejected the divestiture defense and supported the disobedience offense. The court found that the superior, a warrant officer, did not act in a manner where he abandoned his position and office.  His language, while rough, was on par with the environment and both the superior and the appellant used harsh language.  In order for it to be a viable issue the warrant officer must have taken an action or used vulgar or racially motivated language or a challenge to a fight.  These were not at issue and the language used was not out of normal range of dialogue.  

 

Eight years prior the appellant had been convicted of a similar charge but in light of the distance the prior conviction and its foreseeable prejudicial effect, there was a serious question about the ability of this evidence passing the test under Mil.R.Evid. 403, even if the evidence had been otherwise admissible. In U.S. v. Brenizer, 20 M.J. 78 (CMA 1985), the time issue is discussed. 

 

Reasoning:

The court allowed the evidence to be admitted on an entirely different theory; and the judge gave instructions based on that theory.  In light of the erroneous premise of these instructions, the court members may have used the evidence for an improper purpose -- to show that Collier was a disobedient person.   Secondly, the Court of Military Review misapplied the test established by United States v. Brenizer, 20 MJ 78 (CMA 1985).  In this case the judge explained that one of the factors to be considered in deciding whether a prior conviction is admissible is whether the prior conviction was for an offense similar to that for which the accused is on trial.  His opinion makes clear that such similarity militates against reception of the evidence.  The Court of Military Review, on the other hand, turned the test upside down and reasoned that the similarity of the offense for which the accused was previously convicted enhanced the argument for admissibility.

 

Decision: 

Reversed and returned for review.

 

Comment:

The court rejected the divestiture defense and supported the disobedience offense.  The lower court misapplied Mil.R.Evid. 403 and 405 (b).  There was one dissenting opinion by Judge Sullivan.  Judge Sullivan wrote that there was a reasonable inference that could be drawn from the testimony that the appellant was a good soldier who always obeyed orders. See U.S. v. Strong, 17 MJ 263, 266-67 (CMA 1984). The defense then could have argued that appellant's character supported his denial that the order was ever given. Finally, He also found that the form of evidence for character was authorized by Mil. R. Evid. 405(b).

 

U.S. v. Noriega

Brief background:  The Appellant was at a party where his superior was acting as a bar tender.  An altercation occurred between the officer and Noriega.  In the case at issue the Appellant was able to prove that the officer divested his duties.  I will be sharing another case soon that shares the same premise.  That being said, such cases are fraught with unknowns.   

Case Citation:            U.S. v. Noriega, 7 USCMA 196; 21 C.M.R. 322 (CMA 1956).

Parties:                       United States, Appellee

                                    Juan R. Noriega, Appellant

Facts:

Appellant was court martialed for several offenses including disrespect to a superior while attending a party where his superior was bar tending.  

Procedural History:

·         Special Court Martial

·         United States Army Court of Military Appeals

Issue:

Was there sufficient evidence to prove divestiture of duty in this case and how does it relate to Article 91 of the Unif. Code. Mil. Justice?

Holding:

The court concluded that the appellant’s lieutenant did not personally regard the airman's conduct or words as objectionable. He walked away without any remonstrance, and he did not appear at the trial to testify against the airman. In this case, the court dismissed the charge, which convicted the airman of disrespect to a superior officer. The officer in the case abandons his status as an officer acting in the execution of his office. The execution of office is described in Article 90 of the Unif. Code. Mil. Justice: 

1(b)An officer is in the execution of office when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a superior, or military usage. The commanding officer on board a ship or the commanding officer of a unit in the field is generally considered to be on duty at all times.

Reasoning:

The court concluded that the lieutenant did indeed divest of his duties while serving alcohol to the appellant at a party in the officers club.  The lieutenant did not take offense with the appellants conduct nor did he testify against the appellant.

Decision:

The court dismissed the charge which convicted the airman of disrespect to a superior officer.

Comment: 

There was one dissenting opinion, Judge Latimer. In short, Judge Latimer disagreed that the lieutenant divested his duties when he became a bartender for a party which included enlisted men.  Even with his shirt removed the rank was present.