Pre-Litigation Digital Evidence

A Checklist for IP Litigators: Before You File

Evidence collected after filing is evidence collected under pressure.

Identify and map all infringing content — full scope before any takedown
Preserve all publicly accessible evidence before any contact is made
Establish chain of custody from day one — automated logging from the start
Conduct test purchases before filing — physical counterfeit evidence
Verify jurisdiction and authentication requirements — universal evidence floor
Identify evidence at risk of disappearing — volatile content first

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Evidence at risk on contact

Sending a cease and desist or takedown request frequently causes the infringer to remove all content immediately. Preservation must precede any outreach.

Day 1

Chain of custody starts

Chain of custody documentation must begin at the first evidence collection event — not when proceedings are commenced. Courts scrutinise gaps in early custody records.

Jurisdictions to consider

For any cross-border infringement, authentication requirements in US, EU, UK, Germany, and China must be considered before collection — not after.

Key Principle

Any contact with the infringer — cease and desist, takedown request, or platform report — may prompt immediate removal of infringing content. Every preservation step in this checklist must be completed before any outreach.

What's Inside

8 steps before you file.

I Identify and Map All Infringing Content — full scope before any takedown

II Preserve All Publicly Accessible Evidence Immediately — before any contact

III Establish Chain of Custody from Day One — automated logging from the start

IV Conduct Test Purchases Before Filing — physical counterfeit evidence

V Verify Jurisdiction and Authentication Requirements — universal floor

VI Identify Evidence at Risk of Disappearing — volatile content first

VII Assess Privilege and Confidentiality — HAR files, investigator identity

VIII Prepare a Pre-Filing Evidence Summary — organised by infringer