No one wants to receive a cease and desist letter – knowing that you are potentially facing a lawsuit is understandably stressful. That said, there are important steps you can take to ensure that, in the event, the matter proceeds to litigation, you are well positioned. First of all, try not to overreact. Don’t reach out to the attorney who sent the letter, and don’t reach out to the person they represent. Don’t post about the letter on social media or any other public forum. Second, take the time to read the letter and try to understand the nature of the dispute. Does it involve copyrights, trademarks, or patents? Is there a contract or licensing issue? Is there another area of law at issue? Third, get in touch with an attorney, who can analyze the claims raised in the letter and advise you on what to do next. If the letter you’ve received involves an intellectual property dispute, feel free to contact us!
In addition to the above, it’s important to remember that once you receive a cease and desist letter, you and your company have a legal obligation to preserve all documents and information that may relate to the dispute, as those documents may need to be produced to the other side during the litigation that may proceed. Broadly speaking, you should err on the side of preserving all documents that may be relevant. If you have any questions about a particular document, ask your attorney for advice, but in general, you should not delete any documents or information that could potentially relate to the dispute.
The types of documents that must be preserved (if they include information relevant to the dispute) include, but are not limited to:
- Emails;
- Text messages;
- Messages from messaging apps such as WhatsApp, or direct messages on social media platforms like Instagram;
- Microsoft Word/Excel/PowerPoint documents;
- Cloud documents such as Google Docs/Sheets; and
- Any hard copy documents in your possession, including notes.
The above types of documents may be found in a variety of locations and on a variety of devices, including:
- Office computers;
- Smartphones;
- Shared or network drives;
- Cloud storage platforms such as Microsoft Office 365, Google Documents, Google Drive, iCloud or Dropbox;
- Desks, file cabinets, and other office storage; and
- Off-site file storage facilities.
Any information stored on platforms operated by third-party vendors should be identified immediately and copied/downloaded for preservation.
Many companies routinely delete records and documents on a scheduled basis – any such scheduled deletions should be halted immediately once you receive a cease and desist letter or otherwise become aware of potential litigation. The timing of this obligation is one reason that your company may want to consider implementing a scheduled deletion policy, as scheduled deletions may remove sensitive documents from your records before your obligation to preserve relevant information begins. In addition, discussing sensitive topics on the phone or in person, rather than in writing, will help to limit the creation of records that could appear in later litigation.
If you receive a cease and desist letter relating to an intellectual property matter, please do not hesitate to contact us for advice about the nature of the dispute, how to respond, and your obligations under the law.