When Does The Duty to Preserve Begin?

This question used to be one of academic curiosity raised at CLE’s but it is becoming more and more part of the practical reality of litigation.  Just yesterday I had a call from a local firm with a question about this very point (more on that below) and anyone who attended the International Litigation Support Leaders Conference  last week in DC knows that it is the subject of a spirited disagreement between Craig Ball and Ralph Losey.  Since both these men are acknowledged experts in the field, the disagreement only serves to highlight the lack of definition around this topic.

The case in question, Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al.,  2009 WL 910801 (D.Utah), is a patent infringement matter that involved missing documents and e-mails.  Plaintiff had carried on similar litigation against Gateway and documents from a chip manufacturer used by both Gateway and Dell were produced in the first suit and not the second. The court ruled here that the defendants retention policy was inadequate (perhaps deliberately so) and that their duty to preserve extended back eight years before the litigation commenced because of the other similar litigation in their industry of which they were aware and which they were trying to avoid.   Specifically, the court found that leaving docuemt preservation to individula custodians was not an adequate policy.

Now Craig and Ralph are friends of mine and they are also two of the most professionally polite individuals I know.  Their disagreement over this point is of great import and I won’t attempt to speak for them. They have each articulated their positions online, Craig at EDD Update  and Ralph on his blog,  The E-Discovery Team .

The point is that the analysis of when the duty to preserve arises is now part of the analysis of case strategy and should be part of any firms ongoing consultative discusssions with their clients.  When does the client know or should know that their is a dispute that might reasonably be held could lead to litigation and that they thus are obliged to find and preserve all relevant documents?  The call I had yesterday is a good example.

In that case, litigation was filed in 2008 and one party is not producing some email claiming that they upgraded their network a year before the filing and lost some documents in that upgrade.  Further research, however, revealed emails between the parties about their disagreement several months before the upgrade.  Would they not, then, have had an obligation to preserve all relevant documents prior to the upgrade and, in fact, would they not have had an enhanced obligation to make sure these documents were preserved before beginning any upgrade?

These types of discussions are what bring more and more into focus the need for a consultative approach to working with law firms and their clients in order to explore these issues before they arise.  Because once they do arise, if two experts as prominent as Ralph and Craig can disagree about where the obligation lies, then making that decision during litigation will be an extremely lengthy and costly process.


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