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Every party to a civil lawsuit is required to preserve relevant documents and other tangible evidence as soon as they reasonably anticipate litigation. This includes Electronically Stored Information (ESI) such as emails, document meta-data, text messages, social media, and call data under F.R.C.P. 37(e). If a party has filed or been served with a lawsuit, or even retained lawyers and started planning a lawsuit or defense of specific claims, then it is clear that party has “reasonably anticipated” litigation and has a duty to preserve evidence known to be relevant to those claims. But absent such clear circumstances, when will a court determine that a party should have reasonably anticipated litigation?
The timing that a party’s duty to preserve arises will require careful analysis of the specific facts and circumstances of each case. Jenkins v. Woody, 2017 WL 362475, at *14-15 (E.D. Va. Jan. 21, 2017); Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010). Because the potential sanctions for spoliation can be so significant—even if a party earnestly but incorrectly failed to anticipate litigation—it is generally advisable to err on the side of preservation.
For a plaintiff or defendant concerned that adverse parties may not preserve critical evidence, a demand letter or other formal notice threatening specific litigation can be an effective tool. See, e.g., Gonzalez-Bermudez v. Abbott Labs. PR Inc., 2016 WL 5940199, at *24 (D.P.R. Oct. 9, 2016). A “litigation hold letter” is the most common form of such notice. See, e.g., Wolff v. United Airlines Inc., Case No. 18-cv-00591-RM-SKC (D. Colo. Sept. 17, 2019). While such a letter can establish clear evidence of timing of a party’s duty to preserve, it must clearly threaten litigation to be effective. Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 613, 623 (D. Colo. 2007). Additionally, where the scope of anticipated claims or relevant evidence may later be disputed, the letter should explicitly identify “information that is relevant to specific, predictable and identifiable litigation.” Stedeford v. Wal-Mart Stores, Inc., 2016 WL 3462132, at *5 (D. Nev. June 24, 2016). Rule 37(e) requires parties to take reasonable steps to preserve all relevant ESI, but it is advisable to specify and explain the specific media and types of information that must be reasonably preserved. See, e.g., Marten Transp., Ltd., 2016 WL 492743, at *5. These categories of information are ever-expending, and attorneys should not hesitate to list potential platforms and data-types including text messages, social media posts (and private/direct messages), document meta-data, messaging platforms such as Slack, video conferencing platforms like Zoom (including logs where conferences themselves are not recorded), and encrypted platforms like Signal or TOR/Tails. Of course, those in glass houses shouldn’t throw stones—any party sending such a preservation notice has reasonably anticipated litigation themselves and should ensure they have properly preserved all potentially relevant information, including all categories included in their own notice.
Vail Law provides tailored business litigation solutions, and frequently advises clients on appropriate steps to preserve evidence. Contact us to discuss your case today, or view the rest of our Litigation Checklist.