The Duty of Preservation

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1 Session 6 ERM Case Law: The Annual MER Update of the Latest News, Trends, & Issues Hon. John M. Facciola United States District Court, District of Columbia Kenneth J. Withers, Esq. Deputy Executive Director, The Sedona Conference The Duty of Preservation In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL (S.D. Ill. Sept. 25, 2013) In the 7 th Circuit, the duty of preservation arises when the party knew or should have known litigation was imminent. 2 The Duty of Preservation In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL (W.D. La. Jan. 27, 2014) The duty of preservation for class action was triggered by individual action several years before, when a broad litigation hold over all documents related to particular product was issued Managing Electronic Records Conference 6.1

2 Records Management Policies Pillay v. Millard Refrigerated Serv., Inc., 2013 WL (N.D. Ill. May 22, 2013). In an employment discrimination case, a finding of bad faith was not necessary to impose spoliation sanctions when the defendant was on notice of litigation and there was no attempt to halt the automatic deletion of relevant data in the defendant s labor management system. 4 Records Management Policies In re Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, 2014 WL (S.D. W.Va. Feb. 4, 2014) The destruction of records by IT department employees pursuant to routine procedures did not constitute sanctionable spoliation. 5 The Litigation Hold Herrmann v. Rain Link, Inc., 2013 WL (D. Kan. Aug. 7, 2013) Court denies imposition of spoliation sanctions for employees intentional (but not bad faith) destruction of computer files, where no prejudice to the requesting party found as a result of the destruction Managing Electronic Records Conference 6.2

3 The Litigation Hold Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013) Spoliation sanctions imposed for failure to issue a litigation hold until several months after litigation contemplated and intentional (but not necessarily bad faith) destruction of relevant computer files. 7 The Litigation Hold Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2013 WL (S.D. Cal. Nov. 25, 2013) Spoliation sanction imposed for failure to issue a litigation hold, resulting in employees intentional (but not bad faith) destruction of computer files. 8 Technology-Assisted Review In re Biomet M2a Magnum Hip Implant Products Liability Litigation, 2013 WL (N.D. Ind. 2013) Predictive coding protocol, while not perfect, was reasonable and ordering an expensive rerun would be unduly burdensome Managing Electronic Records Conference 6.3

4 Technology-Assisted Review Gordon v. Kaleida Health, 2013 WL (W.D.N.Y. 2013); Hinterberger v. Catholic Health System, Inc., 2013 WL (W.D.N.Y. 2013) General observations (Sedona Principle 6 and the Cooperation Proclamation): When asked by the producing party to approve the use of predictive coding, courts will defer to the party but require a degree of transparency and cooperation. When asked by the requesting party to order the use of predictive coding, courts will decline, but require the parties to cooperate on a reasonable and proportionate protocol. 10 Technology-Assisted Review Federal Housing Finance Agency v. HSBC, 2014 WL (S.D.N.Y. Feb. 14, 2014) Court denied request to broaden discovery after predictive coding protocol implemented. 11 Proportionality McPherson v. Canon Business Solutions, Inc., 2014 WL (D.N.J. Feb. 20, 2014) In putative Fair Credit Reporting Act class action, the court granted limited discovery into the past five years and a random ten percent sample of otherwise eligible class members, to balance the plaintiff s need for the data against the defendant s burden of preservation and production Managing Electronic Records Conference 6.4

5 Proposed Rule 26(b)(1) Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 13 Proposed Rule 26(b)(1) Would any of our cases been decided differently under this proposed amendment? Will this proposed amendment either reduce preservation costs OR result in the loss of otherwise discoverable evidence? What is the prognosis for this amendment being adopted? 14 If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: (1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney s fees Managing Electronic Records Conference 6.5

6 If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: [...] (2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice. 16 If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: [...] (3) Only upon a finding that the party acted with the intent to deprive another party of the information s use in the litigation: A. presume that the lost information was unfavorable to the party; B. instruct the jury that it may or must presume the information was unfavorable to the party; or C. dismiss the action or enter a default judgment. 17 (4) In applying Rule 37(e), the court should consider all relevant factors, including : A. the extent to which the party was on notice that litigation was likely and that the information would be relevant; B. the reasonableness of the party s efforts to preserve the information; C. the proportionality of the preservation efforts to any anticipated or ongoing litigation; and D. whether, after commencement of the action, the party timely sought the court's guidance on any unresolved disputes about preserving discoverable information Managing Electronic Records Conference 6.6

7 Would any of our cases been decided differently under this proposed amendment? Will this proposed amendment either reduce preservation costs OR result in the loss of otherwise discoverable evidence? What is the prognosis for this amendment being adopted? 19 Need more information? Kenneth J. Withers Deputy Executive Director https://sedonaconference.org 9. MER Case Law Update May 19, Managing Electronic Records Conference 6.7

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