When Duty Calls and When It Doesn’t – Revisiting the Duty to Preserve

Wednesday, June 1, 2011 by Thought Leadership Team


If anyone doubts that those who don’t learn history are doomed to repeat it, maybe ediscovery case law can change your mind – a great place to start is with cases dealing with spoliation and failure to preserve relevant evidence. Since the Zubulake decisions established that a duty to preserve arises when a party reasonably anticipates litigation, the “duty to preserve” issue has been litigated too many times to count. In addition to burdening parties and the court systems with the extra time and costs it takes to litigate discovery related issues, these types of cases all too often result in sanctions against the duty-breaching party. Reasons for failing to preserve ESI are varied, but because it is an undying source of litigation, it is certainly worthwhile revisiting exactly what the standard requires as well as a recent decision interpreting its nuances.

Zubulake established that the duty to preserve electronic evidence begins when a party “reasonably foresees” that the evidence may be needed in litigation. In discovery, evidence is a broad term, referring to anything that may be relevant to or probative of the issues in a case, regardless of whether it will ultimately be admissible in trial.

To Whom is the Duty Owed?

After Zubulake, many cases have sprung up applying and clarifying standards for spoliation sanctions across jurisdictions. Other recent cases have clarified when the duty to preserve attaches. For example, in In re Delta/AirTran Baggage Fee Antitrust Ligitation, 2011 WL 915322 (N.D. Ga. Feb. 22, 2011), the court clarified to whom the duty is owed: only to the specific party with whom litigation is anticipated. The court found that the defendant owed a preservation obligation to the Department of Justice (DOJ) pursuant to a Civil Investigative Demand. However, the defendant’s preservation obligation to the DOJ did not extend to the plaintiff who sought sanctions for failure to preserve in a case arising several months later against the same defendant. Even though relevant evidence might have been destroyed while the defendant’s obligation extended to the DOJ, the court denied the motion for sanctions because the DOJ had not filed a motion and the defendant’s duty to the plaintiff preserve ESI had not yet triggered despite general, industry-wide speculation of litigation against the company at the time.

Prudent & Preventative Planning

Even with Zubulake and subsequent cases, there may not be a bright-line moment in every [anticipated] case when the duty springs into existence. If a court later determines that a duty existed, however, it is too late to go back and pre-start data preservation activities. For that reason, it is of paramount importance to implement smart preservation practices (while simultaneously disposing of unnecessary/non-responsive data).

Proper conduct when a duty to preserve arises will not happen without proactive planning. In re Delta/AirTran Baggage hints at another tricky point as well. When multiple litigations are active, litigation holds may overlap concurrently. When a case concludes and a litigation hold may be lifted, it is important to verify whether data must still be preserved in the ongoing case. To this end, proactive planning will also help the organization track its information and know when a hold can be lifted.

The early stages of planning involve determining what data the company has and considering what type of data might be needed in future litigation. Secondly, it is necessary to learn and track where the data exists through data mapping. Decisions must be made regarding how long to keep different types of data, taking into consideration the organization’s needs with regard to business use as well as regulatory and legal requirements. A data retention/destruction policy and process should also be implemented. These steps will make it dramatically easier to identify and collect the relevant data once a specific instance of litigation is “reasonably anticipated” and the litigation hold is in place.