Triggering the Duty to Preserve

Plaintiffs requested email sent to or from the Defendants on November 4, 2011 in their April 10, 2012 discovery requests. The Plaintiffs had filed the lawsuit and an emergency preliminary injunction on November 7, 2011, which was attended by Defense counsel. The Defendants claimed producing the emails was impossible, because the Defendant had a 90 day retention policy and the Plaintiff did not serve the discovery requests until April 10, 2012, more than 150 days after the date in question. Stiriling v. St. Louis County Police Dep’t, 2013 U.S. Dist. LEXIS 71435, 1-5 (D. Mo. 2013).

The Court rejected the Defendants’ “impossibility” argument.

PocketWatchmotherBoardThe Court explained that the “obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation – most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.” Stiriling, at *3, citing  Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir. 1998) (emphasis added), overruled on other grounds by Rotella v. Wood, 528 U.S. 549 (2000).

The Court held that the duty to preserve evidence began on November 7, 2011, because of the filing of the lawsuit and emergency preliminary injunction hearing, putting the Defendants on notice of the lawsuit and the relevant subject matter. Stiriling, at *3-4.

The Court further held:

As such, Defendants are directed immediately to determine all sources, including back-up computer files, where such emails may still exist. Defendants shall thereafter file a notice with the Court advising of any and all sources from which said emails may be retrieved, and shall show cause why they should not be required to retrieve and produce said documents.

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IT IS FURTHER ORDERED that Defendants shall immediately make a thorough and complete determination of all sources, including hard copy files and electronic files, and including any and all back-up files, and make a good faith effort to uncover all responsive information in their possession, custody or control.

IT IS FURTHER ORDERED that on or before May 31, 2013, Defendants shall file a notice with the Court advising of any and all sources from which the requested emails may be retrieved, and shall show cause why they should not be compelled to retrieve and produce said emails from those sources.

Stiriling, at *4-5.

Bow Tie Thoughts

Determining the triggering date of the duty to preserve can be fact intensive. Most situations do not have a dispute date followed by the filing of a lawsuit three days later, complete with an emergency hearing for a preliminary injunction. These facts have bright lines to show a triggering date for issuing a litigation hold.

ComputerFreeze

There are several ways to comply with the duty to preserve (Note, freezing the custodian is not one of them).

If dealing with simply one laptop, having a mirror image of the hard drive might only cost $500 (which compared to motion practice is cheap).

Alternatively, if the relevant content is very specific (i.e., there was an emergency hearing on it), a party might have an expert perform a targeted collection on a laptop, to avoid collecting non-relevant files. Which technology to use will turn heavily on the facts of the lawsuit.

Attorneys would be remised to only think in terms of laptops. Relevant data might be on smartphones or tablet PC’s, so asking their clients what computer devices they use is highly recommended.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

  1. Interesting Josh. It appears when the “triggering event” happens is becoming more and more critical. I suggest that any “event” a party can think of should be considered a trigger. Better safe than sorry.