Preserving Evidence Before It Disappears

Who Should Read This Publication?

This publication is particularly valuable for:

• Military defense counsel — Potentially important evidence can disappear before its significance becomes apparent. Counsel should understand why early identification and preservation of digital, documentary, physical, and third-party evidence can be critical to protecting the defense’s ability to investigate an allegation.
• Civilian attorneys representing service members — Attorneys should consider preservation issues as early as possible, particularly when evidence may be controlled by businesses, government agencies, witnesses, or automated systems with limited retention periods. Early action may prevent valuable evidence from being permanently lost.
• Defense investigators — Investigators are often responsible for recognizing evidence that is vulnerable to deletion, alteration, deterioration, or routine destruction. This publication explains why investigators should identify preservation needs at the beginning of an investigation rather than waiting until the evidence becomes important.
• Legal teams handling cases involving digital evidence — Text messages, social-media content, surveillance video, location information, access records, electronic communications, and other digital information may exist only temporarily. Understanding how and where that information is maintained can help determine what preservation action is necessary.
• Attorneys and investigators dealing with physical evidence or changing scenes — Physical conditions do not remain static. Injuries heal, locations change, objects are moved, and physical evidence may deteriorate or disappear. Photographs, measurements, documentation, and appropriate preservation can protect information that cannot later be recreated.
• Investigators seeking records from third parties — Businesses, medical providers, financial institutions, telecommunications companies, government agencies, and other organizations may maintain records according to specific retention schedules. Investigators should identify potentially relevant sources early enough for counsel to consider appropriate preservation or legal process.
• Service members and families involved in a military investigation — People involved in a case may possess messages, photographs, documents, devices, receipts, or other information whose importance is not immediately obvious. This publication explains why potentially relevant material should be preserved rather than deleted, discarded, altered, or replaced.