ABA Article Suggests a Need to “Preserve Everything”

A recent article in the American Bar Association’s Litigation magazine suggested that:

Plaintiffs must ensure preservation of everything from the moment the problem is identified….  Even if the plaintiff hasn’t filed a lawsuit yet, consider a written instruction to the soon-to-be defendant to preserve everything…. The best way for the plaintiff to ensure everything is preserved is to image everything on all of the potentially relevant electronics as soon as possible through a neutral forensic expert…. The best way to avoid spoliation and missing evidence is to instruct your client immediately on the importance of preserving everything.

David A. Perez and Heath L. Hyatt, “Four Keys to Litigating a Modern Trade Secret Case” (ABA Litigation, Fall 2022), 37, 38-39 (emphasis added).

Much of the article is excellent and it correctly points to the importance of ESI in trade secrets cases.

However, I disagree with the “preserve everything” and “image all devices” approach. For example, Craig Ball, Esq., described “preserve everything” directives as “senseless.”  Amending the Proposed Amendments | Ball in your Court (craigball.net)(Feb. 15, 2014). He wrote:

Your hold notice goes too far when it compels a client to “preserve everything.”  Overpreservation grounded on irrational fear of sanctions is itself a “sanction,” one that’s immediate and self-inflicted.

Crafting the “Perfect” Legal Hold Notice | Ball in your Court (craigball.net)(Oct. 9, 2016).  Craig continued:

You should be able to articulate particularized relevance for any source of ESI you instruct be preserved; that is, you should be able to say why it’s on hold, not simply shrug, “why not?”  Do your homework…. [emphasis added].

Demands to “preserve everything” are often disproportionate to the needs of the case.  See M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 18, passim.  While the scope of the duty to preserve encompasses potentially relevant information, it is limited by proportionality.  Id. at 164, 181-84.  “Proportionality” has become central to all aspects e- discovery.  Id. at 24. When “preserve everything” demands are made, the cost of litigation can soar.  Id. at 18;  Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases”.

Requests for “Any and All” Documents Are Obsolete.  Craig correctly described them as a “boil the ocean” approach.

As far back as 2003, it was stated that “a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary. ‘While a litigant is under no duty to keep or retain every document in its possession … it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence,[1] is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.’…. A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches….” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).  Further, “[a]s a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.”  Id. at 218.

The Zubulake court wrote:

Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail or electronic document, and every backup tape? The answer is clearly, “no”. Such a rule would cripple large corporations….

More recently, The Sedona Conference noted that the scope of the duty to preserve is “highly fact-bound” and involves considerations of proportionality and reasonableness.  Commentary on Legal Holds, 2^nd Ed. (2019), 20 Sed. Conf. J. 341, 351 n. 9 (citation omitted). Sedona Principle 2.04 (Scope of Preservation) states that “[e]very party to litigation and its counsel are  responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control.”  Guideline 7 states:

Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

In applying this principle, Sedona suggests: “Determining the scope of preservation obligations typically involves an initial focus on information available in accessible or ‘active’ sources.”  Id. at 389.  It adds that: “Arguably, marginal or repetitive data falls outside the scope of proportionality and its probative value may be outweighed by the cost to preserve and produce information.”  Id. at 395.

Further, multiple authors have suggested that cooperation is an effective method to address the scope of the duty to preserve.  See Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands.  That blog “suggests two options for businesses and in-house counsel faced with an unreasonable pre-litigation preservation demand. They are to counter-offer or mediate.”

If the 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. That could be combined with an offer to preserve the rest, as demanded, if the plaintiff pays the costs.

In one case, I did just that. I defined what I thought was reasonable to preserve, given the claim, and retained forensic experts to provide a cost estimate for preserving what the potential plaintiff demanded. Faced with a seven-figure, fully-supported estimate of costs, the claimant changed course.

In short, a potential litigant need not preserve “everything.”

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[1] The “reasonably calculated” language was removed from the federal rules in 2015.  It remains in the Maryland Rules.