Preservation/spoliation letters are a vital tool for private investigators to prevent evidence from being destroyed in complex civil litigation and criminal defense cases.
Disclaimer: The author is not an attorney, and the information contained within this article should not be construed as legal advice.
In an article I wrote in 2017, “Evidence Expires,” I point out what should be obvious: hiring a private investigator in the early stages of criminal and civil cases gives clients the best chance of success. Speed often determines case outcomes. The window of opportunity to locate and preserve evidence closes quickly. Certain categories of evidence expire within weeks or even days: surveillance video, text messages, emails, records, etc., are easily and often destroyed. Sometimes the destruction is a deliberate effort to obscure evidence. But other times, it’s just the normal course of business. Surveillance video is taped over, and inboxes get cleaned up — with no nefarious intent.
Either way, there are steps that a private investigator can take to help prevent the intentional or unintentional destruction of evidence.
Preservation/Spoliation Letters
At the start of an investigation, the private investigator and client should review all available information and create a list of potential evidence not yet collected. For each item on that list, the investigator should then draft a preservation/spolilation letter and serve it upon the party in possession of that evidence.
What exactly is a preservation/spoliation letter?
A preservation/spoliation letter is a notice served upon an individual or entity in control of a piece of evidence, requesting that the specified evidence be preserved — and available to produce upon receipt of a subpoena or court order. It further requests that the possessor take reasonable steps to prevent the intentional or unintentional destruction of the evidence. This is a critical step and should be completed immediately, regardless of whether subpoenas or court orders will be sought later.
Remember, the goal is to prevent intentional or unintentional destruction. Subpoenas take time to obtain and process through legal departments. As the minutes tick by, there’s ample opportunity for evidence loss.
Letter Format
Preparing preservation/spoliation letters is pretty straightforward. I highly recommend that private investigators keep letter templates on file and on hand when conducting canvasses. During a canvass, if you discover the existence of evidence but cannot collect it at the time, you can easily write in the name of the person (or entity) who has possession of (or access to) the evidence, include the specific evidence being sought, and immediately serve the party with the letter. The notice should be on the investigator’s or attorney’s letterhead and contain the following sections:
1. The date of the request and the identity of the individual or entity being served.
2. An outline of the nature of the incident under investigation and the specific evidence being sought.
Example: “Our agency has been retained by the ABC Law Firm in regard to a motor vehicle crash that occurred on January 1, 2022. We are requesting that you preserve all video captured by your exterior surveillance cameras between 1:00pm and 1:30pm on January 1, 2022. This video is important evidence in a civil investigation.”
3. A statement of good faith.
Example: “This request is being made in good faith in anticipation of civil litigation before the Maricopa County Superior Court.”
4. The preservation demand.
This section clarifies the preservation instructions and outlines the means to avoid destruction of the evidence.
Example: “In anticipation of subpoenas being issued under the authority of the Maricopa County Superior Court, I am requesting that (insert name or entity) not erase, record over, or alter this video evidence in any way, and segregate and preserve it in order to prevent its deletion or destruction due to a deliberate act, or as a result of backup-tape rotation, electronic data shredding, drive re-imaging, the sale or destruction of computer systems, disk defragmentation, or routine computer maintenance.”
5. Request for communication of the retention obligation to others.
In order to ensure preservation, all parties with access to the evidence must be notified and kept accountable until the evidence has been procured or becomes irrelevant.
Example: “I request that you communicate retention obligations to all persons in the organization, or in control of the organization, who may have access to this evidence, and that you periodically issue reminder notices to them that the notice is still in effect (until otherwise advised).”
6. Contact information
This section includes contact info for whomever will be assigned to answer questions about the preservation request.
7. Instructions
Here you’ll explain how the evidence can be turned over, should the individual or entity elect to do so prior to receiving process from the Court.
Non-Compliance
While a preservation/spoliation letter doesn’t guarantee that the evidence won’t be destroyed, an attorney may later be able to make a claim of spoliation or or ask that a Willits Instruction be provided by the judge. Both are game-changers for your client because they’ll allow the Court to infer that the evidence was in your client’s favor.
Conclusion:
Litigation is won and lost based upon evidence. Identifying critical evidence in the early stages of litigation — and preserving said evidence as quickly as possible — should always be an investigator’s top priority.
Preservation/spoliation letters are important tools to ensure that evidence will be available later. Should the evidence be destroyed, either intentionally or unintentionally, you’ll need to be able to document that preservation notices were served. That step will help set the stage for a legal challenge later, as the case moves forward.
About the Author:
Steven Mason of Mason Investigative Solutions is an award-winning private investigator with decades of investigative experience conducting complex investigations. His approach to civil and criminal private investigations utilizes both traditional and innovative methods designed to withstand scrutiny of the toughest courts, while collecting the information and evidence needed to leverage negotiations and win at trial.