Spoliation Letter (Evidence Preservation Demand)
Generates a formal letter establishing the opposing party's duty to preserve evidence and creating a record to support future sanctions motions.
Prerequisites
Gather before drafting:
- Parties — full legal names, addresses, counsel if known
- Incident — date, location, nature of incident and injuries
- Known evidence — specific items already identified (cameras, vehicles, products, records)
- Case type — premises liability, motor vehicle, product liability, medical malpractice, or other PI subcategory
- Jurisdiction — for state-specific spoliation standards
Quick Start
- Collect party and incident details from intake documents
- Identify case type to select evidence categories
- Draft letter following the required sections below
- Tailor evidence itemization with case-specific items from uploaded documents
- Send via certified mail (return receipt requested); concurrent email if address known
Required Letter Sections
1. Opening — Representation & Notice
- Identify attorney/firm and client
- State date, location, and general nature of incident
- Do NOT disclose work product or litigation strategy
2. Legal Duty to Preserve
- Demand preservation of all relevant evidence
- State duty attaches once litigation is reasonably anticipated
- Require immediate suspension of routine destruction/retention policies
- Require litigation hold across all custodians
3. Evidence Itemization (Case-Type Specific)
Select and tailor from applicable categories:
| Case Type | Key Categories |
|---|---|
| Premises liability | Surveillance footage (camera locations + time window), incident reports, maintenance/inspection logs, prior complaints, repair records, photographs, safety policies |
| Motor vehicle | EDR/black box data, dashcam footage, vehicle maintenance records, driver logs/hours-of-service, employment/training records, cell phone records, GPS data |
| Product liability | Subject product and exemplars, design specs, testing/QA records, prior complaints/recalls, modification history, marketing materials, regulatory submissions |
| All cases | Emails, texts, instant messages, social media, internal communications, photos/video, insurance files, personnel/training files, policies and procedures, financial records |
Always append catch-all: "any other documents, data, or tangible items potentially relevant to [Client]'s claims."
4. Electronic Evidence Specifics
- Demand preservation of metadata, backup tapes, cloud storage, archived data
- Name specific systems/platforms if known
- Require preservation in native format
5. Consequences of Non-Compliance
State spoliation may result in:
- Adverse inference jury instructions
- Issue/fact preclusion
- Monetary sanctions
- Dismissal of defenses or default judgment
- Independent tort liability for spoliation
- Punitive damages exposure
6. Compliance Demand
- Written confirmation within 10 business days
- Must identify: (a) preservation steps taken, (b) custodians responsible, (c) scope of litigation hold
7. Closing & Signature Block
- Attorney name, firm, address, phone, email, bar number
Letter Template
[DATE]
Via Certified Mail, Return Receipt Requested
[Also via email: ___]
[RECIPIENT NAME]
[TITLE]
[COMPANY/ENTITY]
[ADDRESS]
Re: Preservation of Evidence — [CLIENT NAME] v. [ADVERSE PARTY]
Date of Incident: [DATE]
Location: [LOCATION]
Dear [RECIPIENT]:
[OPENING — representation, incident identification]
[LEGAL DUTY — preservation obligation, litigation hold demand]
[EVIDENCE LIST — case-specific itemization]
[ELECTRONIC EVIDENCE — ESI-specific demands]
[CONSEQUENCES — sanctions warning]
[COMPLIANCE DEADLINE — 10 business days, written confirmation]
[CLOSING]
Respectfully,
[ATTORNEY NAME]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
[BAR NUMBER]
Pitfalls and Checks
- No work product disclosure — never reveal legal theories, damage calculations, or strategy
- Jurisdiction matters — spoliation standards vary by state (independent tort vs. sanctions only); flag state-specific requirements [VERIFY when drafting]
- Specificity drives sanctions — supplement generic categories with case-specific items from uploaded documents; broad enough for coverage, specific enough for clear notice
- Tone — professional and firm, not adversarial or threatening
- Timing — send as early as possible; delay weakens sanctions arguments
- Multiple custodians — if evidence is held by multiple entities (e.g., property owner + management company + insurer), send separate letters to each
- Proof of service — always use certified mail with return receipt; concurrent email recommended