Two of the questions most frequently asked at CLE courses and training sessions are

• "What should be in a preservation letter?" and
• "What should I expect to see when I receive a preservation letter?"

The answers to these questions become more important than ever under the proposed changes to the Federal Rules of Civil Procedure, which specifically address electronically stored information. Companies and their legal departments are going to need to work more closely with their IT department and outside counsel when they receive a preservation letter. To comply with these rules, they will have to act in concert to stop the destruction of data that would otherwise be deleted in the ordinary course of business, or overwritten as backup media are recycled.

So, what does a preservation letter look like?

Preservation Requests are intended to be all-encompassing - stop the presses, keep the information, preserve the data, stop the recycling of back-up tapes, do not alter the data, suspend normal operations, do not reuse media... the list goes on. Take a look at a sample preservation letter (see http://cataphora.com/out.php?go=7689o) for some ideas as to what you might want to include in a letter, or what you might want to be prepared for when you receive one. And remember that this is not just about email; some of the most interesting data may be found in email threads, but other systems - databases, back-up systems, archive systems, and other storage devices - may hold probative data and are also important.

In addition to a sample preservation letter, you may want to consider sample interrogatories (see http://cataphora.com/out.php?go=bp967) that might be used in discovery requests. Early depositions of relevant IT staff may be a way for plaintiff's counsel to try to find out what information the respondent has and where it is. These sample interrogatories lay out what should be considered when creating or preparing for this type of deposition, for example:

• What is the layout of the computer system?
• What types of computers are there?
• Where are they?
• What operating systems do they run?
• What software and what data are on them?

These questions all relate to the computer systems of the corporation. It is also important to remember to address individual users:

• What computers are in each custodian's care?
• What other communication devices do they have - Palm, Blackberry, cell phone, etc?

Whether you are counsel for plaintiff or respondent, these two sample documents showcase the complexity of finding the right information. More battles are coming over electronically stored information. For both sides, better understanding of preservation letters and interrogatories will be an important part of the armory.

Discussions is sent periodically to our friends and colleagues in the legal profession. We hope you find it useful - please feel free to contact us and let us know at emailnewsletter@cataphora.com.

This newsletter is also available online at http://www.cataphora.com/newsletter/20051028/index.html