When I speak to e-discovery experts of all kinds about preservation, be they law firm lawyers, big or small, in-house corporate counsel, government lawyers, scholars and academics, insurance company lawyers, paralegals, lit-support, vendors, or technology gurus, they all have a common refrain. They all lament about the murky issue of when a duty to preserve is triggered. As David Letterman said: “Next in importance to having a good aim is to recognize when to pull the trigger.”
The general rule of law is simple, but vague. A duty to preserve is triggered when litigation is reasonably foreseeable. But when is litigation reasonably foreseeable? Whole treatises have been written in this issue and how to make the determination. Best among them is The Sedona Conference’s Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version) (The preservation duty is either triggered by service of process or earlier by “notice of a ‘credible threat’ of litigation.”) It reminds me of what Letterman says: “Traffic signals in New York are just rough guidelines.”
One case I have written about before went so far as to find a duty to preserve arose eight years before suit was filed! Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., 2009 WL 910801 (D.Utah March 30, 2009). Magistrate Judge David Nuffer reached this clairvoyant trigger date based upon his supposition that everyone in the floppy disk industry should have known they would be sued for patent infringement someday. I figured this bizarre opinion would be appealed and reversed. But the magistrate denied the motion for sanctions, stopping any appeal by the District Court Judge, unless it is by the moving party. Phillip M. Adams & Associates, L.L.C., v. Dell, Inc, 2010 WL 2977228 (D. Utah July 21, 2010). Too bad that moots my bet with a New Yorker turned Texan, Craig Ball, who disagreed with my critiques of this case and bet that the hair-trigger hold opinion would be upheld on appeal. Reminds me of a David Letterman joke:
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Source: e-discoveryteam.com
By: Ralph Losey
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