Craig Ball is a very close friend. Also, in the area of electronically stored information (“ESI”) and litigation, he is as good an expert as you can find, in the world. His critique of the President’s lawyers reminds us that blindly copying forms will not serve our clients.
Preservation Letter to Controversial Author
Craig’s “Ball in Your Court” blog took President Trump’s lawyers to task over their preservation demand to Michael Wolff regarding his the book Fire and Fury: Inside the Trump White House. The President’s lawyers sent Mr. Wolff a “cease and desist” letter, claiming that the book is defamatory. That letter also included a “preservation demand;” that is, the letter purported to put Mr. Wolff on notice of Mr. Trump’s potential civil claims, and informed Mr. Wolff of his duty to ensure that evidence, especially ESI, remains available and unaltered.
Craig’s criticism of the preservation demand is that it copied, verbatim, multiple pages of Craig’s exemplar letter from an article that he wrote a dozen years ago. Craig noted that using a letter drafted so long ago, before the terms “Facebook,” “the Cloud” and “iPhone” were common, and apparently giving the language no real thought, harmed the credibility of the President’s legal team. The cease and desist letter’s preservation portion mentioned “Zip discs,” but failed to mention social media, an amazing omission for a firm representing the “Tweeter in Chief.”
The Preservation Letter and Litigation Strategy
Craig’s article and exemplar remain helpful, but no lawyer should just thoughtlessly copy it, especially in 2018.
It seems that these lawyers failed to note the key instruction that Craig included with his exemplar letter:
The preservation letter demands your best effort for a host of reasons. It’s the basis of your opponent’s first impression of you and your case. A well-drafted preservation letter speaks volumes about your savvy, focus and preparation. An ill-drafted, scattergun missive suggests a formbook attorney who’s given little thought to where the case is going. A letter that demonstrates close attention to detail and preemptively slams the door on cost-shifting and “innocent” spoliation bespeaks a force to be reckoned with and signals a case that deserves to be a settlement priority. The carefully-crafted preservation letter serves as a blueprint for meet and confer sessions and a touchstone for efforts to remedy destruction of evidence.
Good Lawyering Adapts to Technological and Social Change
Technology and, more importantly, our use of it are constantly changing. Failing to update the preservation letter and failing to craft a letter for the specific circumstances of the case are a disservice to clients, courts, and the profession.
For a copy of Craig’s recent blog, which includes links to the letter from the President’s lawyers and to his original article Click here.