August 17, 2015

Hon. Dale G. Cox

Acting District Attorney
Caddo Parish Courthouse
501 Texas Street, Floor 5
Shreveport, 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 AfricanAmerican 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).

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 partys failure to affirmatively preserve documents related to a pending suit
including a partys failure to instruct subordinates and others within its control to refrain from
destroying, altering or discarding evidencecan 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.

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. Craig
Co-Director
The Roderick & Solange MacArthur Justice Center