Spoliation and the Duties you Do - Preservation vs. Production Posted By Daniel Kaiser, Esq. on October 16, 2009
If you don’t want to spoliate all over yourself, it’s best to know how to do your duties.
Judge Grimm’s comments on the not-quite-twin duties of Preservation and Production in Goodman v. Praxair Services, Inc. come in the form of an easily overlooked footnote[1], but this is a sidebar worth looking into. Judge Grimm points out that there is “an important difference between the duty to preserve and the duty to produce . . . .”[2] This blog, as the first of a two-part series, will take a closer look at the duty to preserve.
Preserve.
Preservation is the duty with which spoliation comes into play. In Zubulake v. UBS Warburg LLC, (Zubulake V)[3], Judge Scheindlin’s ruling stated that “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[4]
The Sedona Conference Working Group on Electronic Document Retention & Production illustrates litigation holds by stating that “whenever litigation [or a regulatory investigation or proceeding] is reasonably anticipated, threatened or pending against an organization [or natural person], that organization has a duty to preserve relevant information. This duty arises at the point in time when litigation is reasonably anticipated whether the organization is the initiator or the target of litigation.”[5]
Judge Grimm made further reference to Zubulake IV in spelling out this duty: “Once a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a ‘litigation hold’ to ensure the preservation of relevant documents.”[6]
Potentially the best definition of “relevant documents” can also be found in Zubulake IV, including:
[A]ny documents or tangible things (as defined by [Fed.R.Civ.P. 34(a)]) made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” . . . [A]lso . . . documents prepared for those individuals, to the extent those documents can readily be identified (e.g., from the “to” field in e-mails) . . . [A]lso . . . information that is relevant to the claims or defenses of any part, or which is “relevant to the subject matter involved in the action.”[7]
You may well have a comfortable grasp of the litigation hold-based duties to preserve, but preservation duties extend beyond the first, basic step of issuing a litigation hold. In July we saw this point reiterated in Pinstripe, Inc. v. Manpower, Inc.,[8] a hearing on the motion for sanctions against Pinstripe for failure to preserve documents relevant to a court proceeding. Again referencing Zubulake, the U.S. Magistrate Judge held that
. . . a party’s issuance of a litigation hold does not end its responsibilities in discovery. The party must see that the litigation hold is complied with, “monitoring the party’s efforts to retain and produce the relevant documents.” . . . This necessarily involves communication with all of the “key players” in the litigation.[9]
Finally, the Federal Rules of Civil Procedure create the back-door Safe Harbor for electronic information system maintenance entitled Failure to provide Electronically Stored Information: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” [10]
We’ll move on to the duty to produce in my next post.
[1] __ F.Supp.2d __, 2009 WL 1955805 at *17 n.13 (D.Md. July 7, 2009).
[2] Id.
[3] 2004 U.S. Dist. LEXIS 13574; 85 Empl Prac. Dec. (CCH) P41, 728.
[4] Id. at HN1.
[5] http://www.thesedonaconference.org/content/miscFiles/Legal_holds.pdf at 1.
[6] Goodman, FN 1, at *14 (quoting Thompson, 219 F.R.D. at 100, quoting Zubulake IV, 220 F.R.D. at 218).
[7] Zubulake IV, 220 F.R.D. at 217-18 (footnotes omitted).
[8] Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D.Okla.).
[9] Id. citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).
[10] Fed. R. Civ. P. 37(e).
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