A Focused Preservation Letter

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I recently wrote about The Perils of a Misfocused Preservation Letter, discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), and Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands.

Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative Driven (driven-inc.com) (Jan. 3, 2022), highlights the flip side:  “[W]ell-articulated [preservation] letters can also set the stage for sanctions motion practice against parties who fail to preserve relevant information.”

Phil’s blog cited Gomez v. Metro. Gov’t of Nashville, 2021 WL 3406687 (M.D. Tenn. Aug. 4, 2021), and Peals v. QuikTrip Corp., 2021 WL 2043185 (E.D. Tex. May 21, 2021).

In Gomez, the preservation letter was focused and supported sanctions.  In Peals, it was not and did not.

Gomez involved a racially derogatory email to Mr. Gomez from Ms. Smith, an employee of Metro.  “Gomez’s counsel instructed Metro ‘to place a litigation hold on Ms. Smith’s computer.’” Id. at *3.  However, Metro preserved only the “I hate” email. As Phil points out, “ the narrow preservation demand letter plaintiff’s counsel sent” was sufficient to trigger the duty to preserve and Metro failed to comply.  The result was not good for Metro.

Peals was a slip and fall.  Plaintiff’s counsel demanded preservation of “1. All photographs and video of the incident, location, parties, involved, or physical evidence; 2. The actual audio tape recording (and any transcript related to) of any recorded statement made by my client, any witness, your employees; [listing additional demands to preserve evidence]….”  Peals, 2021 WL 2043185, at *2.

The defendant, Quik Trip, acknowledged receipt and stated that it preserved video bracketing by fifteen minutes the time plaintiff was in the store. Two years later, plaintiff sued and demanded production of video from a time six hours before he went into the store. The court wrote that:

QuikTrip informed Plaintiff it did not have the six hours of footage requested, explaining it preserved only thirty minutes of footage, as it “considered that span to be reasonable in duration and preserved it. Other than the produced video, no other video or photographs responsive to this Request is in [QuikTrip’s] possession as [QuikTrip] in good faith preserved that portion of the CCTV reasonably foreseeably relevant to the claim.”

Shortly before trial, plaintiff sought sanctions because the missing video “may well have shown a store employee going into the restroom with a floor cleaning machine and floor cleaning solution.”

In denying the motion, the Peals court carefully noted the limits on the scope of the duty to preserve: “A corporation under a duty to preserve is not required to keep every shred of paper, every e-mail or electronic document, and every backup tape…. In essence, the duty to preserve evidence extends to those employees likely to have relevant information—the key players in the case, and applies to unique, relevant evidence that might be useful to the adversary.” [citations omitted].

The Peals court stated that the plaintiff’s preservation demand triggered the duty to preserve; however:

The Preservation Letter instructed QuikTrip to preserve “all photographs and video of the incident,” but did not state how much footage to preserve or reference cleaning fluids as the cause of Plaintiff’s alleged fall…. Drawing on the limited information in the Preservation Letter and the Incident Report, QuikTrip preserved thirty minutes of footage, which includes fifteen minutes of footage preceding Plaintiff’s entry into the Store…. From this record, the Court finds Plaintiff did not provide QuikTrip with adequate notice that additional footage was relevant to the litigation, or that QuikTrip should have known additional footage may have been relevant. Plaintiff’s Preservation Letter relied on vague, boilerplate language to demand the preservation of “all” photographs, rather than a specific quantum of footage. See Dkt. 59-3 at 3. Additionally, Plaintiff’s Preservation Letter did not allude to the cause of Plaintiff’s injury…. On these particular facts, QuikTrip could not have reasonably known that it should have preserved additional footage or known that its custodial staff would be a “key player” in this lawsuit. [emphasis added].

As Phil explains, “the broad preservation demand letter that plaintiff sent in Peals v. QuikTrip Corp did not require defendant to preserve anything beyond 30 minutes of video footage memorializing plaintiff’s slip and fall.”

Not only was the preservation letter vague, but Quick Trip was quick to act.  Preservation decisions are often made in the “free for all” zone, with no judicial umpire to call the shots.  See Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands citing Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008).

Because there is no “umpire,” I wrote that, “[i]f the[preservation] demand is overbroad, a potential defendant may want to respond by describing what it is willing to preserve, and providing a factually-supported cost estimate for the rest of what the potential plaintiff requests…. If the potential plaintiff demurs, and if the response is reasonable and well-supported factually, plaintiff’s refusal may later be viewed by a court as an admission that the demand was disproportionate or unreasonable.”  Id.

In the blog, I forecasted Quick Trip’s argument:

Judge, I tried to cooperate.  I offered to mediate.  I offered to preserve more if they picked up the cost.  They refused. In fact, they wouldn’t even cooperate at all.  After they refused to respond, I did the best I could — in a free-for-all zone with no umpire — to apply an amorphous duty to complex information technology systems, with little facts to analyze proportionality.  Perfection is not required.  I acted reasonably and in good faith.  The problem is all their fault.  Please deny the sanctions motion.”

Thanks to Phil for highlighting these cases.