August 17, 2015

Hon. Dale G. CoxActing District AttorneyCaddo Parish Courthouse501 Texas Street, Floor 5Shreveport, LA 71101

dcox@caddoda.com

Re: Notice of Potential Litigation Involving the Exercise of Peremptory Challenges in Criminal Trial Cases in Caddo Parish, Louisiana and Accompanying Demand for Preservation of Evidence

Dear Mr. Cox:

Our office represents certain African-American citizens of Caddo Parish, Louisiana with respect to concerns about the exercise of peremptory challenges in criminal trials. This letter is to notify you that potential litigation is contemplated against the Office of the District Attorney of Caddo Parish, Louisiana (“the Office”) pursuant to 42 U.S.C. §1983 involving the following claims (“the Claims”):

(1) an alleged policy, practice, or custom of the Office to exercise peremptory challenges to strike otherwise qualified African-American citizens from participation as trial jurors in criminal cases, motivated in substantial part by their race;

(2) the alleged failure to train employees of the Office to prevent the use of peremptory challenges to strike otherwise qualified African-American citizens from participation as trial jurors in criminal cases, motivated in substantial part by their race;

(3) the unconstitutionality of La. C.Cr.P. art. 795(C), (D), and (E), to the extent those provisions allow the use of peremptory challenges to strike otherwise qualified African-American citizens from participation as trial jurors in criminal cases, motivated in substantial part by their race, so long as the challenge is not “solely based on the race or gender of the juror” (emphasis added).

4400 S. CARROLLTON AVENUE, NEW ORLEANS, LA 70119Phone: (504)620-2259 • Fax: (504) 208-3133

As Acting District Attorney, you, your employees, and your agents may have in your possession, custody, or control documents, information, and electronically or digitally stored information relevant to the Claims. In addition, you and/or your agents and employees may have knowledge of facts relevant to the Claims. It is therefore incumbent upon you to place an immediate “litigation hold” on all documents, electronically generated and stored documents or information, and other evidence that is relevant or may lead to relevant information about the Claims.

Therefore, we demand that you, in your capacity as Acting District Attorney, together with your employees and agents, take prompt and affirmative measures to maintain, preserve, and safeguard against disposal, destruction, erasure, or any other damage to any and all documents and other evidence in its possession or control relating to the Claims set forth above.

As the United States District Court for the Western District of Louisiana has held, “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents.” In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 2872299 at *5 (W.D. La. 2014), citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003) (“Zubulake IV”) (emphasis added). The Court further held that the duty to preserve evidence “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Actos, 2014 WL 2872299 at *5, citing Zubulake IV, 220 F.R.D. at 216 (emphasis added).

Moreover, a party’s failure to affirmatively preserve documents related to a pending suit—including a party’s failure to instruct subordinates and others within its control to refrain from destroying, altering or discarding evidence—can lead to severe sanctions and a finding of an adverse inference against the non-producing party. See Recinos-Recinos v. Express Forestry, Inc. 2006 WL 2349459 (E.D. La 2006); Zubulake V, 229 F.R.D. at 427 (S.D.N.Y. 2005); ABC Home Health Servs. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga.1994).

The purpose of this letter, then, is to put you and the Office on notice of potential litigation regarding the Claims set forth above, so as to trigger the legal duty to take affirmative steps to preserve, retain, and protect all possibly relevant evidence, including electronic evidence. Yelton v. PHI, Inc., 279 F.R.D. 377, 384 (E.D. La. 2011) (“fundamental to the duty of production of information is the threshold duty to preserve documents and other information that may be relevant in a case”); Zubulake v. USB Warburg, 229 F.R.D. 422, 432 (S.D.N.Y. 2005) (“Zubulake V”) (“In short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”).

Documents or information disclosing the characteristics of potential trial jurors recorded, evaluated, and assessed by the Office in the process of jury selection in criminal jury trials would be materials to the litigation of the Claims. Documents or information regarding the policy, practice or custom of the Office with respect to the selection of jurors in criminal jury trials would likewise be material to the litigation of the Claims.

2

Specifically, such documents or information could include:

Jury information forms, jury lists, or other documents prepared by, or received by, the Office with respect to trails prosecuted by the office, from 2003 to the present;

Trial notes, including but not limited to strike sheets, notes on juror information forms or jury lists, from attorneys, investigators, or other employees of the Office related to the selection of jurors in trials prosecuted by the Office, from 2003 to the present;

Emails, test messages, letters, or memoranda reporting on, or assessing, the selection of trial jurors in cases prosecuted by the Office, from 2003 to the present;

Training materials or other non-case related memoranda or information related to the selection of jurors in criminal cases.

For purposes of this notice, “electronic data” or “electronic evidence” includes, but is not limited to, all text files (including word processing documents), presentation files (such as PowerPoint), spread sheets, email files and information concerning email files (including logs of email history and usage, header information, and deleted files), Internet history files and preferences, graphical files in any format, data-bases, calendar and scheduling information, task lists, telephone logs, contact managers, computer system activity logs, and all file fragments and backup files containing electronic data.

Specifically, you are instructed not to destroy, disable, erase, encrypt, alter, or otherwise make unavailable any electronic evidence relevant to the Claims, including but not limited to the categories of documents listed above, and you are further instructed to take reasonable efforts to preserve such data.

As you, in your official capacity as Acting District Attorney (or any incumbent District Attorney or Acting District Attorney) would be a named defendant in the potential litigation, please forward this letter to counsel for the Office of the District Attorney and/or counsel for Caddo Parish.

Thank you for your assistance in this matter.

Regards,

James W. CraigCo-DirectorThe Roderick & Solange MacArthur Justice Center

3