Pettygrove: Avoiding (or winning) evidence preservation arguments

All federal litigants (and litigants in most states) have a legal duty to preserve evidence that might be relevant, whether to their own or another party’s claims or defenses. Though it’s a seemingly straightforward obligation, parties frequently accuse one another of breaching this duty, and the resulting discovery disputes tend to be equal parts tedious, cumbersome and costly. Thoughtful client counseling — early and often — can reduce the likelihood of a preservation dispute and also create the facts and arguments needed to win the disputes that can’t be avoided.

7th Circuit standards, district court guidance

A litigant’s preservation duty arises whenever they “knew, or should have known, that litigation was imminent.” Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir. 2008) (emphasis added). This occurs, at the latest, when a plaintiff informs a defendant of a potential claim. Griffith v. Brannick, No. 1:17-cv-00194-TWP-MJD, 2019 WL 1597948, at *5 (S.D. Ind. April 15, 2019). It can arise sooner, particularly for plaintiffs because they control when litigation begins. See Vander Pas v. Bd. of Regents of Univ. of Wis. Sys., No. 21-CV-1148-JPS, — F.Supp.3d —-, 2023 WL 2651334 at *6 (E.D. Wis. 2023); see also Hunting Energy Servs. v. Kavadas, et al., 2018 WL 4539818, at *(N.D. Ind. Sept. 20, 2018) (duty to preserve arose before either complaint or preservation notice were issued where noncompete defendant listed “getting sued” as a risk in discussions with new business partners, spoke to an attorney about potential suit, and asked partners to “start creating a paper trail” reflecting their inquiries about the new venture to be used in potential suit).

Often, a party’s preservation obligation is triggered by a complaint or from discovery requests. In re Old Banc One S’holders Sec. Litig., No. 00 C 2100, 2005 WL 3372783, at *3 (N.D. Ill. Dec. 8, 2005) (internal citation omitted). Many employment suits are preceded by administrative proceedings, and the notice commencing the agency process likewise triggers preservation obligations under both the general “imminent knowledge” standard discussed above as well as agency-specific regulations. See, e.g., 29 C.F.R. § 1602.14 (Equal Employment Opportunity Commission requirement for respondents to preserve payroll and personnel records relevant to a charge until final disposition of charge or litigation).

The scope of the duty to preserve is broad and “includes evidence the defendant should have reasonably foreseen would be relevant to a potential claim or action.” Pruitt v. Knight, No. 1:18-cv-01658-TWP-MJD, 2019 WL 1416726, at *1 (S.D. Ind. March 29, 2019) (internal citation omitted). A duty to preserve specific types of documents does not arise unless the party controlling the documents has notice of their relevance. In re Old Banc One S’holders Sec. Litig, 2005 WL 3372783, at *3 (internal citation omitted); see also Duncanson v. Wine & Canvas IP Holdings LLC, No. 1:16-cv-00788-SEB-DML, 2018 WL 2733457, at *2 (S.D. Ind. Mar. 1, 2018) (trademark defendant did not breach preservation obligations by failing to preserve each iteration of “working document” portfolio prior to being served with a document request for it, where nothing in plaintiff’s “cease-and-desist” email would have alerted a reasonable person of the need to maintain copies of all iterations).

Suggestions from an employment litigator’s perspective

1. Act quickly. Promptly put your adversary on notice of the items your client contends will be relevant. Plaintiffs must ensure defendants are on notice of the need to preserve documents before they get deleted in the ordinary course of business. See Boyd v. Nichols, No. 1:20-cv-01256-TWP-TAB, 2022 WL 2209951, at * (S.D. Ind. June 21, 2022) (denying sanctions where defendant deleted bodycam footage in the ordinary course before plaintiff sought preservation). Even though many employers today retain more data for longer periods thanks to expanded access and affordability of cloud-based and other storage options, data still get deleted routinely. In particular, employer-issued laptops, tablets and smartphones are often “wiped” or reformatted after an employee leaves so they can be issued to others. Similarly, defendants should notify current or former employee plaintiffs of the need to prevent deletion of potentially relevant data — particularly social media content — as soon as possible. See generally Doe v. Purdue, 2021 WL 2767405, at **13-15 (awarding sanctions over failure to preserve Snapchat data and chiding plaintiff for relying “on a number of self-serving assumptions about Snapchat’s ability to preserve data,” many of which proved inaccurate).

2. Be comprehensive and specific when making preservation requests to your opponent. Many attorneys rely on boilerplate language purporting to require their opponent to preserve, e.g., “all documents, emails and data in any tangible form” that “relate in any way” to “the plaintiff” or “the plaintiff’s employment or relationship with the defendant or its agents.” Such broad and vague demands rarely provide reasonable notice of any particular document type’s relevance, especially in cases involving lengthy periods of employment, different kinds of personnel data stored in various places or work settings where email is utilized with any degree of regularity. An effective preservation request to an employer defendant should identify particular documents (or at least particular categories) that a plaintiff considers relevant to the issues raised in the complaint, e.g., the adverse employment action being challenged, the reasonable accommodation or FMLA leave sought or denied, the time period and participants in an allegedly hostile work environment, etc.

3. Be comprehensive and specific when giving preservation instructions to your client. Make sure they understand, e.g., that text screenshots are better than nothing, but they really need to save the originals on their phone (and they need to notify you before replacing that phone). Emails and other electronic documents typically should be preserved in “native” form, too, not simply printed as hard copies. All drafts and duplicates generally should be maintained along with originals and “final” copies. Advise clients against “self-selecting” what is and isn’t relevant; make sure they understand the need to err on the side of “over-retaining.” See Doe, 2021 WL 2767405, at *8 (nonlawyer interested parties are not qualified to judge relevance).

4. Document preservation is an ongoing process that, like discovery responses, should be supplemented as appropriate. The documents a party preserves and the custodians to whom it provides preservation instructions should be reevaluated at significant points throughout the life cycle of an employment claim, e.g., demand letter, notice of charge, investigator’s requests for information, filing of a court complaint, serving initial disclosures, serving witness/exhibit lists and responding to discovery requests.

5. Put your client guidance in writing, and don’t rely on “one-size-fits-all” preservation instructions. As soon as possible, take the time to assess a client’s hard copy and electronic document creation and retention practices, then issue tailored instructions to appropriate custodians and IT personnel (and update it as needed).•

__________

Joseph C. Pettygrove is a partner at Kroger Gardis & Regas LLP. Opinions expressed are those of the author.