So Sue Me Does Not Trigger the Duty to Preserve in New York State

Determining the triggering date for the duty to preserve is one of the most litigated disputes in cases over lost electronically stored information.

In a partnership dissolution cases, a meeting ended with the alleged remark, “so sue me” in mid-2014. The Defendants brought a motion for sanctions or adverse inference instructions over lost WeChat messages claiming that the Plaintiffs’ duty to preserve was triggered by their statement. The New York Court rejected this argument, finding that the duty to preserve began when the partnership dissolution was filed on February 27, 2015. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 2018 NY Slip Op 32484(U), ¶ 3 (Sup. Ct.).

The Defendants alleged spoliation happened when the Plaintiffs updated their phones before the lawsuit. The Plaintiffs claimed they stopped using WeChat before the relationship between the parties deteriorated. They updated their phones in early 2015. Siras Partners, ¶¶ 1-2.

The duty to preserve arises in New York when a party reasonably anticipates litigation, which is when a party is “on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.” Siras Partners, ¶ 3, citing VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 43, 939 N.Y.S.2d 321 [1st Dept 2012]. Case law examples of the triggering events included a party notified the opposing party they were consulting legal counsel on whether to file a lawsuit. Id.

The Court rejected the Defendants’ motion and found that the question of whether the Plaintiffs violated their duty to preserve when they updated phones could be submitted to the jury. Siras Partners, ¶¶ 3-4.

Bow Tie Thoughts  

The question whether the duty to preserve was triggered can turn into a brawl in motions. It is highly factual analysis of when a party could reasonably anticipate litigation. A future plaintiff telling someone “so sue me” is not as a matter of law a triggering event without more evidence.

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.