Preservation and Records-Distinction Worksheet

Purpose#

The six-way distinction applied to every category of record in a matter — have; may request; discovery only; privileged or private; preserve but not produce; must not access — with the preservation demands sent and their dates.

The six-way records key#

The following letters describe different dimensions, not six mutually exclusive statuses. An item can be held lawfully (H), contain protected third-party information (P), and be the subject of a separate preservation notice (K). Enter multiple flags and explain each flag's factual/legal basis. Do not infer a production entitlement, actual existence, legal control or wrongdoing from a code.

• H — you have it lawfully now.
• R — a potentially applicable lawful access/request path has been identified; separately prove eligibility and scope (for example, applicable California personnel/payroll statutes; Health & Safety Code §§123105–123115 for a qualified requester; Unemployment Insurance Code §1094(e) for permitted personal EDD information, subject to statutory restrictions). A statutory request is not synonymous with an unconditional right to an unredacted copy.
• D — ordinarily requires a procedurally valid court or agency discovery mechanism rather than an ordinary voluntary request. Federal Rules 26/34/45 and applicable California rules have different prerequisites, parties, notice, privilege protections and objections. Some agencies can investigate and compel records before a civil lawsuit, so "only after filing" is not a universal rule. The item still may be inaccessible to the compiler.
• P — contains a potentially applicable privilege, privacy, professional secrecy, statutory confidentiality, work-product or protective-order issue; do not presume every peer-review item or attorney-involved document is privileged without applying the actual elements and exceptions. California Evidence Code §1157 and federal/state privacy regimes require careful scope analysis.
• K — preservation or hold requested or potentially required, with duty's source, trigger, recipient, actual control and scope unresolved until supported. A demand letter is evidence of notice, not by itself a ruling that every recipient was legally obliged to retain every named item or that it possessed the item (Roadmap 007).
• X — do not personally access, export, image, remove or share through a path for which you have no authorization (especially other patients' charts, jail security systems, employment portals, peer-review records or password-protected repositories). Lawful court-supervised discovery or authorized agency channels may still permit protected access in the proper hands; X is not a claim that the evidence is legally unobtainable forever.

Records by category#

Preservation demands#

Instructions and cautions#

Roadmap 007 describes possible preservation duties, but no blanket rule makes a preservation-demand recipient automatically legally bound merely because a letter arrived. A party's duty may arise before formal notice when litigation is reasonably anticipated; a nonparty may be governed by a distinct statute, order, subpoena, policy or contractual duty. Prove those predicates separately. A hold does not entitle the sender to inspect records; a receipt acknowledgment is not confirmation of completed retention. Never use a disputed access right to justify a private export of protected employer, patient or custody data. The user's own preservation duties (including messages unfavorable to the user's position) require equal attention.

Preserve the difference between possession, access and retention#

A records-preservation issue can exist even when a person has no immediate right to inspect the record. Preservation means keeping potentially relevant materials; access means a lawful entitlement to review or receive specified records; production through discovery follows an additional procedural framework. Those concepts must not be combined in a single checkbox. Identify who is believed to hold each record, whether it is lawfully in the compiler's possession and whether a request to retain it has actually been communicated.

Separate policy from system reality and alleged wrongfulness. Video, access logs, scheduling files, clinical audit trails, text messages and EHR backups may have distinct retention clocks. Record the effective policy, owner, source, full text and relevant date; identify actual configuration only when supported by authorized technical or custodian evidence. Normal overwrite is not automatically unlawful, and a published policy does not prove the item existed during the relevant interval. Do not call any absence destruction, bad faith or a sanction-worthy loss without proving the relevant prerequisites, reasonable preservation steps, possible alternate copies and materiality.

A preservation notice should not be treated as permission to export data from restricted systems. Employees or contractors may be allowed to view a record for professional purposes but not permitted to make a private copy. Patient charts, peer-review materials, account credentials and third-party private information require particular caution. This worksheet never instructs a person to bypass access controls or transfer another person's information to the website.

When a custodian responds, retain the verbatim reply and proof of actual receipt. Differentiate “received,” “forwarded,” “will investigate,” “hold issued,” “hold implemented,” “responsive data identified,” and “data preserved”; none is automatically equivalent to another. Capture exclusions and identified retention limitations without filling them from inference. Backups, messaging exports, audit trails and vendor-hosted records may be separately controlled and technically difficult to preserve. Future court or agency rulings, not this worksheet, decide contested discovery obligations and sanctions.

Entity and custody boundaries. A county, sheriff, CFMG professional entity, Wellpath-related administrative employer, individual clinician, third-party EHR vendor, pharmacy, payroll vendor and insurer may hold different parts of the chronology. Contract labels, W-2 identities, system branding and website claims do not independently establish possession, custody or legal control of a particular data source. Capture exact legal entity, contract/source page, relevant dates, actual system administrator and production authority separately. In federal court, Rule 34 requires possession, custody or control; a nonparty may have a distinct Rule 45 route. This source-A number does not decide canonical source-B mapping.

Preservation and discovery: the required legal distinctions#

This is a decision tree, not a litigation-hold template that automatically creates duties. A source-A records row should remain marked unverified until each applicable question is answered independently.

1. Existence: does the item actually exist in the asserted system, and for the relevant date range? An index reference or anticipated business practice is only a lead. A generated PDF is not proof that the native source and metadata still exist.
2. Identity: who generated, owned, hosted, administered and could delete or retrieve the item on the relevant date? A system's commercial brand or contract sponsor does not answer that question.
3. Preservation trigger: for a potentially litigating party, what event made relevant litigation reasonably foreseeable and what specific subject matter was implicated? A lawsuit, charge, credible dispute notice, direct instruction or known serious incident may be evidence; there is no universal trigger date. Distinguish pre-litigation from post-suit triggers and preserve any earlier holds.
4. Duty and scope: what relevant information fell within the reasonable preservation obligation? Relevance, proportionality, available sources, accessibility, privilege, legal restraints and burden matter. A party need not preserve every byte of every system forever. A statutory retention rule can be independent of litigation duty.
5. Reasonable steps and actual loss: was there a targeted hold, vendor notice, suspended rotation, export, read-only image, archival snapshot or effective backup? Was data actually lost from the universe of available sources, or merely unavailable from one device? Document possible restoration from recipients, server snapshots, archives, vendor exports or audit logs.
6. Access versus production: can the requester lawfully inspect now? Can it ask voluntarily, make a state/federal statutory records request, seek agency investigation, serve discovery in an actual action, or apply for a court-authorized protective protocol? A duty to preserve does not equal a right to immediate production.
7. Potential remedy: if relevant evidence was lost, which jurisdiction/rule governs, and what prejudice, intent, notice, alternative-source and lesser-measure findings would be required? An alleged violation is not equivalent to entitlement to an adverse inference or sanctions.

Under Fed. R. Civ. P. 26(b)(1), relevant nonprivileged discovery must also be proportional to the needs of the case. Rule 34(a)(1) covers material in a party's possession, custody or control; Rule 45 separately regulates subpoena process for nonparties. Their service/notice, form-of-production, cost, privilege and undue-burden provisions must not be collapsed. A civil Rule 45 subpoena should never be presented as though a pro se plaintiff could invoke an agency's independent subpoena power on demand. [Authorities F01–F04 in the accompanying private source-access register.]

Federal Rule 37(e) — exact loss and sanctions steps

Rule 37(e) governs electronically stored information lost because a party failed to take reasonable preservation steps when litigation was anticipated or ongoing, and which cannot be restored or replaced through additional discovery. Before suggesting that a sanction may be available, record evidence for: (i) relevant ESI existed; (ii) a duty to preserve applied; (iii) the party did not take reasonable steps; (iv) information was in fact lost; (v) restoration or replacement was not possible. Each element can be disputed. A preservation letter does not establish any one of them by itself.

If these threshold requirements are shown, subdivision 37(e)(1) permits measures no greater than needed to cure proven prejudice. The serious consequences in 37(e)(2)—an unfavorable presumption, an adverse jury instruction, dismissal or default—require a finding of intent to deprive another party of the ESI's use in litigation, not merely negligence or gross negligence. The court still considers fit and alternatives; Rule 37(e)(2) does not mandate the harshest sanction even when its intent requirement is satisfied. For non-ESI, orders and conduct outside subdivision (e), obtain a distinct legal analysis rather than importing (e) mechanically.

**Adverse authority — Jones v. Riot Hospitality Group LLC, 95 F.4th 730 (9th Cir. Mar. 5, 2024). The Ninth Circuit upheld dismissal of an employment case where the plaintiff deleted relevant texts and coordinated with witnesses to delete messages. The opinion shows that the claimant's own** phone, texts, cloud accounts and colleague communications are potential preservation targets; accusations against the employer are not a substitute for clean, complete preservation of claimant-controlled evidence. The decision also confirms that intent may be proved circumstantially and that separate prejudice proof is not invariably required under subdivision (e)(2), once that rule's prerequisites and intent are established. Record contrary messages, embarrassing evidence and adverse dates without selective curation; use counsel-supervised forensic collection rather than personal modification.

Independent federal employment-record retention — not just a demand letter

29 C.F.R. §1602.14 has its own recordkeeping requirements for employers covered by Title VII and relevant EEOC regulations. The EEOC's current public summary distinguishes ordinary retention periods for private employers, state/local employers and educational institutions, and states that when a Title VII, ADA or GINA charge has been filed, records relevant to that charge or action must be retained until final disposition as defined by the regulation. This is not the same as a private request, nor a claim that every email, every employee file or all affiliated corporate systems must be kept indefinitely. Identify which exact respondent entity and record class are covered and when the charge was actually filed/received. Preserve the charge, respondent identity dispute, position-statement notice, correspondence and any lawfully available proof of custodial routing. These are evidence leads, not a finding that any particular respondent failed to comply. [EEOC official guidance E01–E02 in the source register.]

For California FEHA or other regimes, do not substitute the federal federal-regulation periods automatically; locate the applicable independent statute, actual employer classification, effective version and any administrative instructions. When the asserted record class is an ADA request, work-status clearance, payroll, portal-access event, scheduling order or benefits communication, connect exact dates, provenance, authorized recipients and factual relevance to the protected conduct alleged, while recording exculpatory and alternative explanations. Do not publicize health or personnel records from an administrative file without a separate confidentiality assessment.

California civil discovery and spoliation — independent analysis

California Code of Civil Procedure §2023.030(f) and §2031.300(d) contain protections, absent exceptional circumstances, for ESI lost through routine good-faith system operations and expressly do not eliminate preservation obligations. These are not universal licenses to continue auto-deletion after a legally sufficient hold. Nor do they adopt federal Rule 37(e)'s entire intent/prejudice sequence verbatim. California Civil Discovery Act motions, nonparty subpoenas, court orders and discovery misuse rules require separate application; see CCP §§2017.010, 2023.010–.030, 2031.010, 2031.280 and 2031.300, subject to current 2026 text verification.

**Adverse authority — Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (1998); Temple Community Hospital v. Superior Court, 20 Cal.4th 464 (1999). California generally does not recognize a separate intentional-spoliation tort against an adverse litigant or an intentional third-party spoliator in the described circumstances. The relevant options may instead involve discovery sanctions, evidentiary inferences, preservation orders, other statutory remedies or case-specific action. Therefore do not** draft “destruction = independent damages cause of action” as a default. Special statutory duties, independently actionable conduct and the exact procedural posture require professional review.

Do not represent a hypothetical EEOC, CRD, medical-board or county investigation as an ordinary civil discovery case. Distinguish intake, subpoena/compulsory requests, investigative preservation requests, agency-file retention and eventual civil action; identify the actual actor who has authority to compel production.

Working matrices — facts sufficient for adversarial review#

A. Preservation-trigger and custodian ledger

For each recipient, distinguish awareness within the particular entity from notice to an unrelated company. Record whether a notice addressed CFMG, a management/payroll entity, a county office, independent professional corporation, insurer or vendor; attach evidence of the person's role and authority. “Sent to Wellpath” is not enough to establish a hold implemented at a county-owned video or jail-custody system. Conversely, absence of a letter does not necessarily exclude an independent existing duty.

B. Six-part ESI availability inventory

Examples to consider only when supported: payroll export versus underlying timekeeping database; scheduling assignment versus payroll hour count; signed return-to-work clearance versus upload/access logs; ADA correspondence original message versus screenshot; employer-of-record payroll versus EDD filing extracts; EHR encounter list versus native EHR audit trail; video clip versus complete original with synchronized camera clocks; medical referral request versus off-site completion; grievance receipt versus entry in custody case-management; disciplinary draft versus final notice; patient incident report versus an external agency summary.

C. Legal route and production map — do not confuse tools

Use a competent court-issued process or licensed counsel for contested nonparty access; this worksheet does not authorize self-help acquisition from another person's device or restricted account.

D. Loss, prejudice, restoration and proportionality analysis

The defense may reasonably contend that (a) data never existed, (b) it was held only by an unrelated entity, (c) the preservation trigger had not arisen, (d) the loss resulted from an ordinary system schedule before any duty, (e) reasonable steps were taken, (f) the material is available elsewhere, (g) requests are disproportional, (h) the item is privileged or confidential, or (i) the loss is immaterial. Record evidence that would support those arguments, not only rebuttal talking points. A discrepancy between two exports is not itself evidence that one was altered.

E. Chronological audit of each preservation demand

An unacknowledged notice may still be relevant as attempted notification. Do not silently convert dispatch into receipt. A letter copied to in-house counsel is not proof of attorney advice or privilege waiver; a response by an outside firm is not necessarily a binding admission by all affiliated entities. Privilege determinations require content, client identity, confidentiality and purpose analysis, not job titles alone.

F. Original-file integrity and production authenticity

Maintain two identifiers: an evidence identity referring to the actual original source and a working-copy identity used for redacted analysis. Preserve original filename, extension, source device, file size, SHA-256 of bytes actually received, receipt timestamp and original metadata without modifying the source. A hash proves the compared byte strings matched; it does not prove authorship, truth, lawful acquisition, completeness, contemporaneous creation or custody. For email, preserve headers and attachments when lawfully available, distinguishing sender timestamp, mailbox receipt, forwarded display and later export. For multi-page PDF or images, preserve pages including backsides and filing stamps; transcripts/OCR are aids, not substitutes for native records.

For EHR, scheduling, jail video or other restricted systems, the proper custodian or a trained authorized professional should obtain native and audit information under lawful authority. Logging in with shared credentials, exceeding a former role's privileges, defeating technical controls, or uploading protected health information to a public site creates serious independent exposure. Redact only derivative copies and document the redaction rule. Hold originals in restricted storage; confirm attorney-client materials are separated from ordinary factual attachments.

G. Privacy, privilege, public record and professional access firewall

California Evidence Code §1157 does not make all physician-adjacent documents categorically protected; analyze the type of committee, statutory coverage and records independently created outside qualifying proceedings. HIPAA patient information is not freely transferable because it might help a lawsuit, nor is a legal subpoena always sufficient without the applicable conditions and safeguards. County records may require CPRA exemption and privacy analysis (including Gov. Code §7927.705), and a public-records response does not validate the truth of every statement within the returned record. Distinguish requests for public contracts, staffing policies and expenditure totals from requests for identifiable patient charts, detention security information or sealed personnel records.

For every potentially sensitive record, log: protected person's relationship to the facts; what lawful source exposed the information; independent privilege/privacy basis; minimum fact needed to prove the public proposition; proposed redaction and irreversible public exclusion; consent/authorization/order basis, if relevant; independent counsel/clinical reviewer; and unresolved conflict. This private worksheet does not clear any named patient, employee, witness or medical-board respondent for publication.

H. Agency, court and bankruptcy records — distinct clocks and repositories

A bankruptcy docket's served motion, a county board agenda attachment, an EDD payroll statement, a medical-board intake letter, an EEOC position statement, a HIPAA access acknowledgment and a federal court subpoena are created through different processes. For each, distinguish document date, actual submission date, filing stamp, service/receipt, status of decision, and later modification or appeal. A court's denial of one motion is not necessarily a merits resolution of separate employment rights. An agency's docketing or closure letter may not mean a finding that the underlying factual claim was false. A declaration about source provenance must not silently convert these records into verified adjudicated facts.

I. Concrete adversarial examination questions

1. What factual basis shows the disputed item ever existed, rather than being a commonly used record type?
2. Which natural person or legal entity controlled the primary system during the exact alleged loss period? What contract or administrator record proves it?
3. Was the preservation letter sent to that entity, and did anyone with appropriate authority receive it before the challenged system action?
4. Could relevant litigation reasonably be anticipated then? Distinguish whistleblower communications, payroll disputes, pending EEOC charge, medical-board complaints, tort claims and court proceedings; do not assume each puts every recipient on notice of all subjects.
5. Was the record retained under a lawful policy in force at the time? Was automated expiration documented before the alleged trigger?
6. Which specific relevant content is irretrievably missing, and why can recipient threads, vendor snapshots, audit logs or alternate custodians not restore it?
7. What is the strongest nonwrongful explanation for each missing file, discrepancy or destruction allegation?
8. Is any relevant message held solely by the claimant and potentially inconsistent with their chronology? Has it been preserved unselectively?
9. Would the requested search invade protected patient communications, security protocols or peer review, and can a narrower or protective alternative answer the fact question?
10. Under the applicable tribunal's rule, do the facts justify merely a request to investigate, discovery relief, a prejudice cure, or an actual intent-based sanction? Avoid turning one into another.
11. Did an independent court or agency ever find the conduct intentional, or is it only a party's allegation? Preserve the exact operative order and subsequent history.
12. Does the available provenance prove only what a document states, or also independent truth, author identity, complete context and date? Specify gaps separately.

J. LEAP and editorial release hold

Cross-reference the preservation trigger events to Roadmaps 006/007, requests and limits to 033/038/104/109, evidence admission to 113, privilege to 032/143, and claims/defenses to 134–143 only when actual source-A relationships support the link. These references are planning labels, not canonical claims that alternate source-B manuscript bodies match. Existing source-B mapping holds (079–099, 100–124, 125–150), indexed 092–095 successors and competing 096.1 must remain unresolved until byte-level comparison. Source-B 090–091 absent bodies are omissions, not proven collisions. Nothing here modifies the locked pilot including 040.

Before release, require exact human review of all patient/custody facts, a legal currentness check of every material rule and adverse case, an independent privilege/privacy pass, confirmation of all dynamic template fields and routes, and separate authorized release approval. Owner approval to complete drafting is not the same as clearance to publish. These checks remain open and cannot be self-certified from metadata, hash verification, or the author of this worksheet.

What this worksheet does not do#

It does not tell you whether you have a claim, whom to name, where to file, or when. Those are questions for the Roadmaps and for counsel. It records facts so that those questions can be answered accurately.

Related roadmaps#

006, 007, 032, 033, 038, 104, 109, 113, 143; alternate 096.1 is held for source-B precedence review, not asserted as a canonical mapping.

Internal source-A closeout note (October 19, 2026): This is a complete private revised body. The user-approved drafting phase does not validate its underlying factual allegations, establish an enforceable hold or sanctions predicate, prove a named organization's control of any records, resolve California October 2026 statutory recodification, or satisfy external independent publication review. All original manuscript bytes and earlier candidates must be preserved; this source-A revision must not be inserted into production without a separate affirmative clearance decision.