Tuesday, August 13, 2013

The Duty to Preserve Evidence in a Civil Case

I received the following e-mail from a very experienced and knowledgeable personal injury trial attorney. I think it bears repeating and I think Randall Ogg, Esquire from Washington DC for this information:

"  The case law is now clear that a party's  duty to preserve evidence commences at "the moment that litigation is reasonably anticipated. "  Victor Stanley, Inc. v. Creative Pipe, Inc, 269 F.R.D. 497, 521 (D. Md 2010)(citations omitted). This standard applies equally to plaintiffs and defendants.  The notion that the duty to preserve does not commence until suit is filed or a document request is received is outdated.  Judge Grimm's opinion in Creative Pipe outlines some of the cases in which parties and counsel have been sanctioned for both intentional and unintentional failures to preserve electronically stored information pre-suit, including evidence that could be lost by routine auto-deletions.  His opinion and those of others recently on the subject also emphasis that the party failing to preserve potentially relevant information better not set themselves up  as an early "judge" as to what is relevant in the case.  In the specific example that has been discussed on this forum - - negative Facebook postings - - it would be extremely risky for any plaintiff to start deleting  postings and then try to claim that they did so because they thought the postings were "irrelevant" to the case.   As several spoliation cases have noted, the fact that the party "deleted" the materials is pretty strong evidence that they believed it to be relevant and negative. Indeed, there are cases which hold that improperly deleted data will be presumed to be adverse to the deleting party.  The presumption may do more harm than the actual photo or comment that was deleted.

                In light of the emerging case law, not only would it be ethically impermissible for any attorney to advise a client with a PI claim to clean-up the existing Facebook postings, it would be negligent not to fully inform the client from the outset of the representation as to the scope of the duty to preserve and the potential ramifications of the client's failure to do so.     The case law makes clear that waiting until  a document request is received  is too late to start the preservation.   Moreover, if you have not told your PI client about the duty to preserve and your client on his or her own begins to clean up the social media accounts   and the defense finds out about this and some sanctions are imposed and a good case is impaired, you may have to answer to a lawsuit from your former client for failing to give proper warning as to what the client was supposed to do.  I would not want to be before any of the local federal Magistrate Judges  and have to argue that they should go easy on my client because my client was  not informed of the preservation duties about social media accounts  until after the first discovery request was served.

                The short of all this is that the emerging case law makes clear that the duty to preserve starts very, very early AND that the law has begun to impose on counsel new obligations to fully educate our clients (both on the defense and plaintiff side) as to the duty to preserve.  For this reason, the number of scary spoliation cases is growing as attorneys are not getting the message.

                Finally, what is sauce for the goose is sauce for the gander.  As plaintiff attorneys, none of us would suggest that  a defendant's duty to preserve does not start until a document request is received  or that it would be permissible for defense counsel to delay implementation of a preservation plan until the first document request is served.  As a whole, it is the plaintiff side that benefits more  from strong evidence preservation obligations being imposed. "

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