Golden Oldie #1 – Is a Preservation Letter Necessary to Trigger an Opponent’s Duty to Preserve?

My blogs generally focus on new cases.  However, sometimes it is helpful to look backwards.

A “golden oldie” is “something once popular or valued that has retained its appeal or for which interest has been reawakened….”  Definition & Meaning | Dictionary.com.  The term refers to something that is still important, even though it is quite old.  Definition and meaning | Collins English Dictionary

Thompson v. HUD, 219 F.R.D. 93 (D. Md. 2003)(“Thompson II”), is 20+ years old. It involved “allegations of purposeful discrimination by the defendants in connection with the operation of public housing in Baltimore, spanning three quarters of a century. The docket sheet reflects more than 550 entries and is in excess of seventy pages in length.”  By the time the case settled, the docket had grown to 1,296 entries.  Dkt. 1:95-CV-00309 (11/30/2021).

In Thompson II, certain defendants failed fully to produce emails after the Court ruled that they were discoverable.  Plaintiffs moved for a sanction.  The Court entered one that would conditionally preclude defendants from calling certain witnesses unless they could demonstrate that the witness had not sent or received responsive emails.

As trial approached plaintiffs asserted that defendants intended to call prohibited witnesses and plaintiffs filed a motion in limine to preclude that action.

Discovery issues included, without limitation, whether email was discoverable, the late production by defendants of 80,000 responsive emails, proportionality, and a condemnation of boilerplate objections (called ipse dixit objections).

However, in my view, one of the most interesting aspects of Thompson II involved when and how the duty to preserve was triggered.

Defendants “argued that they should not be sanctioned for having destroyed or otherwise failed to preserve electronic records during the pendency of this case, asserting that the Plaintiffs had a duty to seek a preservation order from the court, which they failed to do.” [Emphasis added].

The Court held that defendants’ argument was without merit, writing:

While a litigant certainly may request that an adversary agree to preserve electronic records during the pendency of a case, or even seek a court order directing that this happen, it is not required, and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information. [Emphasis added].

The Thompson II Court cited Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. October 22, 2003) (“Zubulake IV”), for the proposition that “the duty [to preserve] is triggered ‘when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.’”

In short, under Thompson II, while a preservation letter or demand sent by one potential litigant to another would trigger the recipient’s common-law preservation duty, it is not required.  The duty is triggered by reasonable anticipation of litigation, even in the absence of an opponent’s preservation demand.

History is important.  For example, Thompson II was recently cited in Hargis v. Overton Cnty., Tennessee, 2023 WL 8604139, at *9 (M.D. Tenn. Dec. 12, 2023).  There, defendant argued that it could not have anticipated litigation until it received a preservation letter.  The Hargis court disagreed.  It quoted  Thompson II for the proposition that, while a preservation demand would trigger the duty to preserve, it was not required and “a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information’ if the adverse party knows or should know of impending litigation.”  [citation omitted].

I am going to follow this blog with several more blogs on older discovery decisions.

History is important.  For example, metadata isn’t new. In fact, it was found in a draft of the Declaration of Independence. Thomas Jefferson’s “Metadata” in the Declaration of Independence – E-Discovery LLC.

Previously, I posted:

• Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout – E-Discovery LLC
• Historical ESI Highlights – Part XI – Taniguchi v. Kan Pacific Saipan – E-Discovery LLC
• Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure – E-Discovery LLC
• Historical ESI Highlights – Part IX – Lorraine v. Markel Am. Ins. Co. – E-Discovery LLC
• Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation – E-Discovery LLC
• Historical ESI Highlights – Part VII – The Sedona Conference and EDRM – E-Discovery LLC
• Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching – E-Discovery LLC
• Historical ESI Highlights – Part V – Technology Assisted Review – E-Discovery LLC
• Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502 – E-Discovery LLC
• Historical ESI Highlights – Part III – The “Marquee E-Discovery Disaster Cases” – E-Discovery LLC
• Historical ESI Highlights – Part II – Zubulake – E-Discovery LLC
• Historical ESI Highlights – Part I – E-Discovery LLC (“Knowing the history of e-discovery gives context to the practitioner for a better understanding of the purposes of the current rules and future legal developments.” … “The history of e-discovery shows that applying traditional rules to emerging technological advances produces, at best, disparate results. It was only through innovative judge-made law and a revision to the Federal Rules of Civil Procedure that this area of the law achieved a measure of uniformity.”)(citations omitted).
• Did You Know? – Spoliation, Part X – E-Discovery LLC
• Did You Know? – The Fax Machine, Part IX – E-Discovery LLC
• Did You Know? – The Photocopier, Part VIII – E-Discovery LLC
• Did You Know? – The Mimeograph, Part VII – E-Discovery LLC
• Did You Know? – The Computer, Part VI – E-Discovery LLC
• Did You Know? – The Magic Marker and Highlighter, Part V – E-Discovery LLC
• Did You Know? – The Typewriter, Part IV – E-Discovery LLC
• Did You Know? – The Ballpoint Pen, Part III – E-Discovery LLC
• Did You Know? – The Fountain Pen, Part II – E-Discovery LLC
• Who First Used the @ Sign in Domains and What Does It Mean? – E-Discovery LLC
• Who Invented the Mouse a/k/a the X-Y Position Indicator for a Display System? – E-Discovery LLC