Evidence Collection Checklist

Search the conflicts database for the client, related entities, opposing parties, key witnesses, and adverse insurers. Don't open the matter until conflicts are clear or a written waiver is on file — Rule 1.7 / 1.10 imputation can disqualify the firm later.

Document the conflict, draft an informed-consent waiver under Rule 1.7(b) signed by every affected client, and stand up an ethical screen if the conflict involves a lateral attorney. Managing partner signs off before the matter proceeds.

Identify the proper court — federal vs. state, district, division — and confirm personal jurisdiction over each defendant. Local rules drive every downstream filing format and deadline, so lock this in before drafting.

Outline the prima facie elements of each cause of action and anticipated affirmative defenses. The element map drives what evidence is relevant — collecting without it produces over-inclusive document sets and missed proof gaps.

Enter the SOL date in the firm docket with redundancy: PMS calendar, Outlook, paper file cover. Set 90-day, 30-day, and 7-day ticklers. A missed SOL is the single most common malpractice trigger.

Send a written hold notice to every client custodian likely to have responsive ESI — email, Teams/Slack, mobile, shared drives, voicemail, and personal devices used for work. Suspend auto-delete and BYOD wipe policies. Track acknowledgments; an unacknowledged custodian is a future spoliation argument.

Walk each custodian through their email, file shares, mobile devices, cloud apps (Dropbox, Box, Google Drive), and any departed-employee archives. Build the data map before issuing collection — missed custodians and missed sources are the leading cause of supplemental productions.

Pull contracts, communications, accounting records, and operational files identified in the custodian interviews. Preserve metadata — a forensic copy beats a drag-and-drop. Stage in the review platform (Relativity, Everlaw, Logikcull) with custodian metadata intact.

Draft Rule 45 subpoenas (or state equivalents) for banks, employers, medical providers, and ISPs. Confirm proper service method and the recipient's response window — narrow scope to defensible relevance to avoid motions to quash.

Photograph items in place before moving anything. Bag, label, and seal each piece with the matter number, custodian name, date, and collector initials. Don't clean, repair, or alter — opposing counsel will move to exclude any evidence with a chain-of-custody gap.

Record every transfer — collector, recipient, date, time, condition — on the firm's chain-of-custody form. Each handoff between paralegal, expert, vendor, and storage gets its own line. The log is the evidentiary foundation at trial.

Use the firm's locked evidence room or a third-party storage vendor with controlled access. Climate-control biological, paper, and electronic items per their preservation requirements. Document who holds keys or access codes.

Build a witness matrix from client interviews, document review, and incident reports. Capture name, contact info, employer, role, and what each witness is expected to know. Flag former employees and friendly-vs-hostile status before reaching out.

Memorialize interviews in attorney work-product memos, not verbatim transcripts — work-product is harder to compel than a recording. Note demeanor, gaps, and inconsistencies. For represented witnesses, route through their counsel under Rule 4.2.

For witnesses who may become unavailable — elderly, ill, traveling, or hostile to subpoena — capture testimony in a notarized affidavit while it's fresh. Stick to admissible facts; opinion and hearsay weaken the document at any later motion practice.

Inventory email systems, file shares, collaboration platforms (Slack, Teams), mobile devices, social accounts, accounting systems, and SaaS apps. Negotiate the ESI protocol with opposing counsel under Rule 26(f) before collecting — format, search terms, and custodian list drive every downstream cost.

Retain a qualified forensic examiner to image devices and collect cloud data. Self-collection by the client is frequently challenged at deposition. Vendor produces a collection affidavit with hash values for every container — that affidavit is the foundation for admissibility under Rule 902(13)/(14).

Capture hash values (MD5/SHA-256) for every collected container and re-verify on each transfer to the review platform. Log custodian, device, collection date, examiner, and storage location. A broken hash chain is a Daubert-grade challenge to authenticity.

Map each disputed element to the expert discipline needed — economist for damages, accident reconstructionist, forensic accountant, treating physician, industry-standard expert. Identify whether each will be testifying or consulting only; the work-product protections differ.

Engagement letter spells out scope, fee, testifying-vs-consulting role, and document handling. Retain early — late retention forecloses input on collection strategy and risks Daubert exclusion. Verify CV, prior testimony, and any prior exclusions before signing.

Send curated materials only — anything you give a testifying expert is potentially discoverable under Rule 26(a)(2)(B). Track what was sent, when, in what version. Privileged drafts and attorney communications get the Rule 26(b)(4) treatment but the underlying facts and data do not.