How to Provide Non-Parties With Notice to Preserve Documents

Sometimes, electronic discovery takes us outside the realm of just the plaintiff and defendant - a third party can also be put on notice to preserve documents for litigation. The legal requirements for e-discovery dictate how parties should preserve documents for litigation, while third parties rely on Non-Party Preservation Notices.

The Non-Party Preservation Notice should be issued by, or on behalf of, the requesting party's general counsel, or another individual with sufficient authority within the company's management or legal department to command the attention of the recipient.

A Non-Party Preservation Notice should contain the following:

1. The name, venue and basic elements of the litigation or investigation

Write this statement with sufficient specificity to provide the non-party recipient an adequate understanding of its subject matter, scope, and relevant time period.

2. A description of the legal or business relationship between the requesting party and the non-party recipient

This section explains what has created the need for the non-party to preserve relevant material. If the material in the non-party's custody is in reality owned or controlled by the requesting party, this should be stated in the request.

To the extent known by the requesting party, this relationship description should include identification of the names, titles, and locations of those persons within the non-party recipient's organization who are most likely to have been involved with the material.

3. A copy of or reference to any contract or agreement that was in effect during the relevant time period

An existing contract might include additional duties or details that are relevant to preserving documents, as well as help identify relevant information.

4. Identification of the range of different types of material to be preserved

List out the types of documents or files included in the preservation request, such as:

  • Paper and electronic documents
  • Voicemail
  • E-mail
  • Databases and other data
  • Audio Files
  • Video Files
  • Photographs or image files
  • Physical samples

5. A statement that the non-party recipient should suspend its normal retention schedule and disposition policies

Inform the non-party recipient that until further written notice, they should not delete or destroy any relevant material - regardless of routine or automated practices in effect prior to the Preservation Notice.

6. A request that the non-party recipient distribute the Preservation Notice

The recipient should distribute the Notice to all persons within their organization, or within the control of their organization, who are known or suspected to have relevant material in their possession, custody or control.

7. A request that the non-party recipient track and obtain an acknowledgment from all persons to whom the Preservation Notice was distributed

The acknowledgment includes confirmation that such persons received and understood the Preservation Notice, and that such persons identify and categorize any relevant material within their possession, custody or control. Such a request should also include an inquiry as to whether such persons know of others within the organization who should receive the Notice.

8. Directions on who the non-party recipient can contact with questions

Request that they direct any questions about the subject matter or scope of the Preservation Notice to a designated legal representative.

9. A request that the non-party recipient hold relevant material

Ask that the material needed is held in suspense and safe from modification or destruction until they are contacted by a legal representative of their own organization (or, of the requesting party's organization, if appropriate) to provide guidance on how relevant material will be collected.

10. A request that the non-party recipient periodically re-issue and refresh the Preservation Notice

The non-party should redistribute the Notice to all relevant persons within their organization, to remind them the Preservation Notice is still in effect until they are advised to the contrary.

11. Request written acknowledgment of receipt of the notice

Ask that the reply include confirmation of intent to comply with the preservation request.