Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing. Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order. Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its own proceedings.” Gambino v. Hershberger, 2017 WL 2493443 at *3 (D. Md. June 8, 2017), aff’d, 700 F. App’x 272 (4th Cir. 2017); Cognate BioServices, Inc. v. Smith, 2014 WL 988857 at *6 (D. Md. Mar. 12, 2014).
Procedurally, at least where the grounds are apparent at an early stage and there is no agreement among the parties, “[s]uch an order should [be] sought, if at all, as preliminary injunctive relief or… as part of a discovery preservation order at the initiation of the case.” Collins v. Tri-State Zoological Park of W. Maryland, Inc., 2021 WL 5416533 at *5 (D. Md. Nov. 19, 2021).
It is often difficult to obtain a preservation order. The GAP Report to the 2000 Advisory Committee Note to Fed.R.Civ.P. 26(b)(5) states that:
The requirement that the parties discuss preservation does not imply that courts should routinely enter preservation orders. A preservation order entered over objections should be narrowly tailored. Ex parte preservation orders should issue only in exceptional circumstances.
“Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.” Gambino, 2017 WL 2493443, at *3. To the same effect: “There is, however, no need for such an order because Doe is already under a duty to preserve material evidence.” Malibu Media, LLC v. Doe, 2016 WL 593502 at *1 (D. Md. Feb. 12, 2016). “[A] preservation order should not be necessary because once a party is served with a lawsuit it is aware that litigation is pending and has a duty to preserve evidence.” Byrna Techs., Inc. v. Duke Def. USA, Inc., 2021 WL 5234582 at *1 (D. Nev. Aug. 24, 2021); Seikaly v. Seikaly, 2019 WL 4141023 at *4 (D. Md. Aug. 29, 2019) (requiring arbitration of protective order issue); In re Protegen Sling and Vesica System Products Liability Litigation., 2001 WL 34131465 at *1 (D. Md. Dec. 21, 2001) (“the Court expressed its views regarding evidence preservation; if the parties desire an order regarding evidence preservation, they should meet and confer and propose such an order to the Court”); Cooke v. Lancelotta, 2022 WL 622229 (D. Md. Mar. 3, 2022) (“Moreover, through counsel, Matthew has pledged to turn over all financial information related to GCC and the GC Entities by March 3, 2022 and to supplement that production monthly thereafter. That commitment gives this Court substantial confidence that the Plaintiffs do not, right now, face imminent harm….”); Rogoff v. T-Mobile USA, Inc., 2021 WL 5279921 at *1 (W.D. Wash. Nov. 12, 2021)(“Given the presumption that Defendant will abide by its duty to preserve evidence and the lack of evidence suggesting that Defendant has failed to comply with its preservation obligations, the Court finds that entry of a preservation order is unnecessary.”); but cf. Washington v. Rounds, 2017 WL 5668216 at *5 (D. Md. Nov. 27, 2017) (ordering parties to prepare preservation order to prevent overwriting of surveillance video); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 501, 509-11 (D. Md. 2010) (two preservation orders issued).
Nevertheless, while preservation orders may be difficult to obtain, the 2015 Advisory Committee Note to Fed.R.Civ.P. 37 states that:
The duty to preserve may in some instances be triggered or clarified by a court order in the case. Preservation orders may become more common, in part because Rules 16(b)(3)(B)(iii) and 26(f)(3)(C) are amended to encourage discovery plans and orders that address preservation. Once litigation has commenced, if the parties cannot reach agreement about preservation issues, promptly seeking judicial guidance about the extent of reasonable preservation may be important. [emphasis added].
The standard for obtaining a contested preservation order remains high: “A party seeking a preservation order ‘must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed—a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past.’” Gambino, 2017 WL 2493443 at *3, quoting Cognate BioServices, 2014 WL 988857 at *6 (citation omitted).
Courts have been split on the applicable test:
[W]hen resolving motions to preserve, courts have applied different tests, including the four-prong test for a preliminary injunction, (i.e., the consideration of (1) substantial likelihood of success on the merits; (2) substantial threat that plaintiff will suffer irreparable injury if the injunction is denied; (3) whether the threatened injury outweighs any damage that the injunction might cause defendants; and (4) whether the injunction will disserve the public interest), and the three-prong preservation test….
Deggs v. Fives Bronx, Inc., 2020 WL 3100023 at *2 (M.D. La. June 11, 2020); True the Vote, Inc. v. Internal Revenue Serv., 2014 WL 4347197 at *5 (D.D.C. Aug. 7, 2014) (noting split). To the same effect: “A Motion to Compel Preservation is subject to the same analytical framework as a motion for injunctive relief.” Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 2016 WL 10676292 at *2 (D.D.C. Dec. 12, 2016)
The countervailing view is that “to apply preliminary injunction standards to a preservation order request ‘creates anomalies,’ requiring the court to ‘evaluate the merits of the litigation even before evidence has been gathered, let alone produced to the opposing party or submitted to the court.’” Toussie v. Allstate Ins. Co., 2018 WL 2766140 at *5 (E.D.N.Y. June 8, 2018). Thus: “There is “no reason ‘to consider whether [a party] is likely to be successful on the merits of its case in deciding whether to protect [evidence] from destruction.” Id. at *5 (citation omitted). In Toussie:
The Court has carefully considered the cases cited by the parties and agrees with other courts that have rejected the preliminary injunction standard in the context of orders to preserve relevant evidence for use in discovery and at trial. Unlike a preliminary injunction, a preservation order has little to do with the substantive merits of any claim or defense; instead, such an order enforces the parties’ pre-existing, independent obligations to preserve relevant evidence for use in discovery and at trial, thereby ensuring the integrity and fairness of the adjudicative process.
Consistent with that purpose, the Court agrees that a version of the balancing test is the appropriate standard by which to determine whether to continue the preservation order. Thus, the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence.
Toussie. 2018 WL 2766140 at *7.
That test was first enunciated in Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 433 (W.D. Pa. 2004). The Capricorn test involves analyzing:
(1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; (2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and (3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence’s original form, condition or contents, but also the physical, spatial and financial burdens created by ordering evidence preservation.
It has been well received. “This Court favors the three-factor Capricorn test because, at bottom, it more squarely addresses the key considerations of a party’s preservation obligations: whether the information at issue is relevant to the parties’ claims and defenses, and whether the ability and effort necessary to preserve the information is proportional to the needs of the case.” Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408, 416 (S.D. Cal. 2018); Greenbank v. Great Am. Assurance Co., 2019 WL 4259650 at *1 (S.D. Ind. Sept. 9, 2019).
A third test has been used. The party seeking preservation must demonstrate that an order is both necessary and not unduly burdensome. Cognate BioServices, 2014 WL 988857 at *6.
Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006), appears well-reasoned. There, Biovail refused to agree to a preservation order because it was aware of its duty. The court wrote: “Such reasoning is shortsighted.” The Judge analyzed all three tests and wrote that:
The critical question is under what circumstances a preservation order should be issued…. Some courts have taken the position that a party seeking a preservation order must meet the standards for obtaining injunctive relief…. However, attempting to apply these requirements in the context of a request for a preservation order creates anomalies. For example, the court must evaluate the merits of the litigation even before evidence has been gathered, let alone produced to the opposing party or submitted to the court. As one court has observed, there is no reason “to consider whether plaintiff is likely to be successful on the merits of its case in deciding whether to protect records from destruction…. [S]uch an approach would be decidedly to put the cart before the horse.”…. Instead of importing the standards for injunctive relief, some courts have instituted a balancing test for determining whether to issue a preservation order…. Other courts have adopted a more streamlined test that simply “requires that one seeking a preservation order demonstrate that it is necessary and not unduly burdensome.”… Even under the two-factor approach, one element of demonstrating the necessity for an order is a showing that the documents in jeopardy are in fact relevant…. Thus, while the ability to establish that unique and critical evidence will be destroyed would certainly buttress any motion for a preservation order, it is not an absolute requirement under either articulation of the balancing test. That test, in turn, is better adapted than the standard for injunctive relief for dealing with the question of whether to require the preservation of evidence, the nature of which may not yet be fully known, and I will therefore apply a [Capricon] balancing standard in this case.
 Cognate BioServices cited Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 136 (Fed.Cl.2004). In some instances, “some showing” of a significant concern is sufficient. Pinson v. Othon, 2020 WL 6450497 at *2 (D. Ariz. Nov. 3, 2020).