In a preservation letter, a potential litigant demands that the opponent preserve specific ESI and documents. The purpose of the letter is to trigger the common-law duty to preserve potentially responsive information. However, if not properly drafted, a preservation letter can have the opposite effect.
Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), demonstrates the perils of a misfocused preservation letter. There were two flaws in the Malone preservation letter. First, it omitted a target defendant that destroyed relevant ESI before it had notice of the claims. Second, it did not cover sufficient ground as to the recipient. The recipient complied with the request and was not sanctioned for failing to do more than requested.
Malone arose out of the in-custody death of an inmate. A few weeks after the death, the decedent’s mother messaged Wicomico County to preserve videos for certain dates. A few days later, the mother’s attorney sent a preservation letter to the County demanding preservation of:
Any video or other recorded materials and/or any documents generated from the above referenced incident. Specifically, please preserve all such materials, including any information involving the officers responsible for watching Mr. Cosier’s cell, related to the investigation into the death of Thomas Cosier; KGA tapes; calls for service; investigation, reports/documents; memoranda of any kind; fire department records; EMS records; witness reports, employee records; body cameras on the officers; patrol cars with video cameras; computer notes in cars, Internal Affairs files, (including but not limited to notes, memos, witness statements, photographs; police reports); booking information; witness statements; any and all documents related to the above referenced matter not specifically identified herein.
Notably, the letter stated the claimant’s intent to preserve claims against the County and related people.
The claimant’s name was misspelled, and a corrective letter was sent a month later. Then, approximately a month after that, “the attorney sent a third letter expressing an intent to sue ‘Wicomico County, its employees, agents and representatives, and any and all heretofore unidentified governments, agencies and/or individuals’ for claims to include ‘negligence, gross negligence, and intentional wrongdoing include [sic], but are not limited to, assault, state and federal civil rights violations, and any and all other tort claims that may be discovered.’” Id. at *1.
Three years after the inmate’s death, suit was filed against the County, seven employees, and Conmed, LLC, known as “Wellpath.” Wellpath was the facility’s medical provider.
The Court wrote that “Wellpath first learned of the action upon receiving service [of the lawsuit].”
However, the Court explained that, a few months before suit was filed, “Wellpath had instituted a new nationwide email retention policy which led to the destruction of millions of emails not known to be preserved in connection with pending litigation. The emails Plaintiffs eventually requested in this litigation had largely been destroyed [before Wellpath received notice of the claim] pursuant to the email retention policy.”
Plaintiff sought sanctions. The Court denied the request.
Wicomico County could not be sanctioned. In the Court’s words: “The preservation letter sent to Wicomico did not ask for ESI or emails to be preserved. Wicomico preserved the evidence requested in the preservation letter it received, did not destroy any evidence, and bore no obligation to notify Wellpath of Plaintiffs’ intent to sue. In fact, Wicomico had no reason to know that Plaintiffs had an intent to sue Wellpath, as the correspondence written by Plaintiffs’ counsel made no mention of any such intent or any actions taken by Wellpath employees…. Nothing in the course of Plaintiffs’ correspondence with Wicomico suggested that it would be pursuing a federal civil rights claim implicating Wellpath at all…. Plaintiffs’ focus was, instead, on the conduct of the Wicomico guards….” Id. at *2 (Emphasis added).
In short, Wicomico County preserved what the preservation letter asked it to preserve, and the County had no reason to anticipate broader litigation involving Wellpath. The Court wrote:
Plaintiffs’ counsel could, for example, have asked Wicomico to preserve its internal email communications or communications involving policies enacted by its medical provider. He did not. In the absence of any reference to the medical provider or to email communications, it is not reasonable to suggest that Wicomico had a duty to foresee that Plaintiffs’ legal theories might encompass Wellpath’s mental health care policies, or to predict the scope of discovery requests Plaintiffs might make years later.
However, Wellpath was in a different posture. It had destroyed relevant emails before it had notice of, or reason to anticipate, the claims against it. Id. at *3. The preservation demand sent to Wicomico County did not mention Wellpath. Id. The lawsuit that provided notice of the claims to Wellpath was not filed until months after the document destruction. Id.
The Court concluded that, absent notice of a claim or reasonable anticipation of litigation, Wellpath’s common law duty to preserve had not been triggered. Id. at *3.
To circumvent the lack of notice, Plaintiff argued that “when people die in the jail, [it is] common for lawsuits to follow….” Id. at *4. However, the Court pointed to the delay of three years in asserting the claim that gave notice.
Additionally, prejudice was absent, at least here, where Wellpath did not act with intent to destroy evidence. The Court wrote: “It is also worth noting that the content of the missing emails in this case is entirely unknown. There is no evidence before the Court suggesting the subject matter covered by any emails touching on Mr. Gosier’s medical condition or death, or any emails about policies affecting WCDC during the relevant period.” If Wellpath had destroyed the relevant emails after notice of the claim against it, that analysis might have reached a different conclusion.
Finally, plaintiff apparently pointed to alleged misstatements of defense counsel during the litigation. The Court wrote:
Finally, Plaintiffs object to Wellpath’s handling of its communications with the Court during the discovery process regarding the potential continued existence of responsive emails. Even inaccurate representations made during the course of a case do not constitute spoliation, and this Court is not inclined to parse every statement made by counsel to see whether counsel should have been clearer about what did and did not exist. In the absence of some proffered statement clearly evidencing lack of candor to the Court, this Court sees no basis for imposition of sanctions. [Emphasis added].
For a guide to drafting a preservation letter, see Craig Ball, “The Perfect Preservation Letter: A New Guide,” Ball in Your Court (Sep. 10, 2020); Principle 2.01(c) of the ESI Principles of the District of Maryland; M. Berman, et al., eds., Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), 149-68, 155-56; and J. Gilliland, “Determining the Scope of the Duty to Preserve,” Bow Tie Law, bowtielaw.com (May 17, 2018).