An important aspect of criminal investigations is maintaining a solid chain of custody and legal complaints when gathering digital evidence. A preservation letter, or a preservation demand or litigation hold, is a formal written notice sent by one party to another to ensure specific evidence relevant to an ongoing or potential legal proceeding is not destroyed.
In digital forensics, preservation letters are particularly crucial in preventing the destruction, alteration, evidence tampering, or loss of evidence that might be integral to the case. Preservation letters are powerful in safeguarding evidence and ensuring a fair legal process. Their contents include[1]…
- Notice of pending litigation
- Facts that outline the reason for the evidence preservation request,
- A request to preserve specific types of evidence in their possession,
- The dates of the preservation requirements,
- A request for identification of particular individuals who would hold relevant evidence and the name of the individual or individuals who will be responsible for evidence preservation
Why Preservation Letters are Needed
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Preservation of Digital Evidence: Today, most evidence is stored electronically. From emails and text messages to social media posts and documents, digital evidence can be easily modified or erased. Preservation letters help ensure this evidence remains intact and unaltered until it can be adequately examined and evaluated.
Prosecutors rely on the accuracy of these letters, especially in cases that involve evidence found in social media accounts. When generating preservation letters, one must account for all factors, including account information, recovery emails, and phone numbers. Preserving evidence maintains accuracy in its original context and authenticity, which lowers the risk of tampering or manipulation.
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Legal Compliance: Law enforcement agencies and individuals involved in criminal investigations have a legal duty to preserve evidence. Maintaining a chain of custody achieves evidence preservation and involves chronologically documenting the evidence's custody, control, and location.
Preservation letters maintain an unbroken chain of evidence, which is critical for establishing the evidence's credibility in court. The court will decide if a duty to preserve evidence exists [1]. Failure to do so can result in severe consequences, including excluding evidence from legal proceedings.
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Supporting the Investigative Process: An accurate and complete evidentiary record is crucial for effective investigations. Preservation letters help law enforcement build strong cases by securing all potentially relevant evidence for examination. Every piece of evidence, whether a physical object collected from a crime scene or a digital footprint, plays a part in investigative techniques.
Preservation letters bolster the credibility of evidence presented by assuring the court that it is a faithful representation of the original. This strengthens the case's credibility and enhances the probability of a favorable outcome.
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Protecting Victims/Witnesses Rights: Protecting the constitutional rights of victims and witnesses closely ties to preserving evidence. Preservation letters also extend their protection to victims' personal information.
In cases involving sensitive or private data, such as medical records or confidential communications, preservation letters ensure that this information is protected and not exploited during the investigation. This protection helps victims maintain their privacy and dignity throughout the process.
Preservation letters can include provisions to maintain the confidentiality of victims'/witnesses' identities, shielding them from potential harm or intimidation. By preserving evidence and maintaining the integrity of victims' testimonies, preservation letters contribute to the overall credibility of the investigation. This, in turn, empowers victims in the justice system.
Instances Where Preservation Letters Helped Influence Cases
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The case Zubulake v. UBS Warburg LLC[2] was an instance where failure to follow preservation demands led to unfavorable outcomes for the defendant. Plaintiff Laura Zubulake filed suit against her former employer, UBS, alleging sex discrimination, failure to promote, and retaliation. During the investigation, the defendant deliberately destroyed relevant information and failed to follow the instructions and demonstrate care in preserving and recovering key documents detailed in the preservation letter. Failure to follow orders on the preservation letter, the Jury found in Zubulake's favor on claims awarding compensatory and punitive awards.
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Harris v. Harris[3] involved a dispute over control of a closely held family company, in which the defendants allegedly looted the company and then successively redomiciled and attempted to evade causes of action under New Jersey law. Defendants made a practice of deleting their text messages — with at least one defendant later admitting that she did so to prevent them from being produced in discovery. The court found that the plaintiffs had presented sufficient evidence of spoliation.
The multidimensional role of preservation letters in the investigative landscape highlights their importance. Their influence spans from preserving digital evidence, safeguarding it from the manipulative hands of technology, to the unwavering commitment to victims' and witnesses' rights, preserving their dignity and confidentiality.
Preservation letters also act as architects of a strong case, ensuring that the foundation of evidence is unshakable. Prosecutors meticulously maintain accurate recordkeeping to present unaltered narratives to the courts.
ADF Solutions empowers investigators with tools that bridge this gap. When utilizing ADF Solutions products, in a triage or early case assessment situation, ADF will uncover user accounts for social media, cloud storage, bank accounts, and apps that may have been previously unknown. This allows for swift action by the investigator to produce and send preservation orders the same day, ensuring the suspect/target cannot tamper with or destroy potential evidence.
Just as a preservation letter safeguards the original context of evidence, ADF Solutions authenticates the capture of the digital footprint.
Learn more about ADF’s role in helping prosecutors capture, verify, and preserve evidence in a manner that maintains its unaltered state by clicking the link to watch our prosecutor webinar or by reading our E-Discovery Guide.
