Highlights of Interesting Participant Answers: Preservation

Question 1 (Defendants): What is the problem, if any, that such a preservation order creates for the defendant company?

* While the first two parts of the preservation order are relatively easy to handle, the third creates an impossible burden due to its overbreadth. This is mischief in the making, for reasons totally unrelated to the facts on whether or not there should be liability. For example:

• Defendants are drug companies. Retaining anything "related to" the drugs in effect precludes them from destroying any documents
• The cost of retaining back-up tapes on e-mails and other electronic communications can be prohibitive.
• It would be impossible to get all personnel employed by the defendants to comply, thus setting up the defendants for a fall. The lawsuit will be tried on whether or not there was compliance with the order, not whether the defendant's conduct injured the plaintiff.
• Who are the defendants' "agents?" Impossible to know whether the court will agree with a defendnant's assessment on whether a particular relationship rose to the level of an agency one.

* The initial problem is the fact that the company may be facing several simultaneous requests to preserve documents related to other actions. Identifying the individuals who would have documents subject to the order may require extensive interviews of corporate staff (including remote offices, and traveling sales people) and directing them to save documents until further notice. Oftentimes it may be several months or years that the company may be required to save this information.

Question 1 (Plaintiffs): Are judges likely to grant this motion? Why or why not?

* Yes. Several possible reasons:

• Not burdensome to retain the data, since it's already there on hard drives, and the defendant's practice is just to let the e-data accumulate
• Storage media is cheap. If they have to back up more often and with more media, the cost is marginal.
• Spoliation - if the data aren't preserved, then important information may be lost

* While the motion should be granted (under FRCP or state analogues), I suspect many judges would (wrongly) view the requested order as enlarging the scope of discovery, and greatly increasing its burden, and would either deny the motion outright, or conduct lengthy hearings before deciding it.

Question 2 (Defendants): What sort of representation should (must) the defense counsel make to get the order vacated? narrowed?

* Defense counsel should discuss with the court that the preservation request is overbroad insofar as it does not specify who within the corporation is responsible for compliance with the request. Narrowing the scope of the preservation order by specifying teh staff (or departments) most likely to have documents to be reserved, as well as the exact the time periods in question.

Question 2 (Plaintiffs): Are you really worried that the defendant will destroy documents relevant to the plaintiff's claim? Explain.

* I would be primarily concerned about automatic purging policies, either pre programmed, or in the direct control of a storage vendor.

* Yes. In my experience, when large sums of money are involved, defendants are motivated to destroy harmful documents. In fact, the more damaging the document, the more likely it will disappear. In addition, one need only look at recent cases to see the extent to which defendants will go to assure that plaintiff's attorneys will not obtain crucial documentary (or digital) materials.

Question 3 (Defendants): What steps would you take to comply with the order, assuming it is not vacated? Think in particular about the extent of your responsibility to ensure that the order is realized within the company and how you could accomplish that.

* Communicate with staff as to the scope of the order. Identify the types of documents that should be saved. Set up, with the coordiantion of internal IT or an outside expert, a designated spot on the corporate server where all staff can move files subject to the order to facilitate easier retrieval when requested at a later date.

Question 3 (Plaintiffs): What leverage, if any, would entry of this preservation order create beyond the preservation obligations created by common law?

* The immediate leverage I see is to eliminate the potential for a plea of ignorance: the target of the order could not later claim that it thought e-mail records weren't covered by discovery obligations.