Preservation is an ancient, well-established common law doctrine. Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722) (chimney sweep boy and the missing diamond); Goodman v. Praxair Services, Inc. 632 F.Supp.2d 494, (D.Md. 2009) (Grimm, J.). Apparently the doctrine goes back even further to the days of Roman law. Ancient or not, the doctrine is still very much alive today. In fact, over the last several years this doctrine has become a hot-bed of motion practice for alleged violations of the duty to preserve evidence, especially when electronically stored information (“ESI”) is involved. Apple Inc. v. Samsung Electronics Co., Ltd., 888 F. Supp. 2d 976 (ND Cal. 2012) (ruling on cross-motions for sanctions for ESI spoliation on the eve of largest jury trial in the U.S. in 2012).

Courts often enter orders to preserve evidence in particular cases, or impose sanctions for failure to preserve, even though here is no federal rule of civil procedure directly addressing preservation. See Pension Committee of the Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010) (“Pension Committee“) (Scheindlin, J.) (“breach of the duty to preserve, and the resulting spoliation of evidence, may result in  the imposition of sanctions by a court because the court has the obligation to ensure that the judicial process is not abused”). This is often referred to as an exercise of a court’s inherent authority. See eg. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“the power to sanction for spoliation derives from the inherent power of the court, not substantive law”); Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (authority to impose sanctions for spoliated evidence arises from a court’s inherent power).

Courts have also relied upon Rule 37 as a source of authority to impose sanctions for spoliation that occurs during litigation, even though preservation is not mentioned in the rule. “[I]f the spoliation violates a specific court order or disrupts the court’s discovery plan, sanctions also may be imposed under Fed. R. Civ. P. 37.” Victor Stanley . v. Creative Pipe, Inc., 269 F.R.D. 497 at 517 (D. Md. 2010) (“Victor Stanley”). Also see: Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-107 (2d Cir. 2002) (discussing broad discretion to fashion remedies under Rule 37 for violation of a discovery order).

There is very little variation between the circuits on the general common law governing standards of preservation, but there is wide variation as to the appropriate sanctions for spoliation. Victor Stanley Appendix (chart lists different standards of the Circuits). (This blog will not address sanctions, per se, but it should be noted that the Victor Stanley opinion by Judge Grimm includes a scholarly discussion of the topic.)

Courts generally require a party to begin preservation efforts when they know, or should know, that that evidence is likely to be relevant to pending or future litigation. See, e.g., Victor Stanley, supra at *22–23. (the duty to preserve “‘may arise from statutes, regulations, ethical rules, court orders, or the common law . . . , a contract, or another special circumstance,’” and “[t]he common law imposes the obligation to preserve evidence from the moment that litigation is reasonably anticipated.”) (citations omitted).

Another way of putting this is that the duty to preserve arises when litigation is reasonably foreseeable or anticipated. See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 587-88 (6th Cir. 2009) (remanding to the district court to consider whether it was reasonably foreseeable that missing documents would be needed in future litigation); Pension Comm., 685 F. Supp. 2d at 465, 496 (“pending or reasonably foreseeable litigation”); Victor Stanley, 269 F.R.D. at 521 (“reasonably anticipated” litigation); Rimkus Consulting Group. Inc. v. Cammarata, 688 F. Supp. 2d 598, 641, 642 (S.D. Tex. 2010) (Rosenthal, J.) (“reasonably anticipated” litigation).

Even though the rule on when a duty to preserve is triggered is fairly straightforward, the application of the rule to the facts is not. More on that in a later blog. But one hint for now, if you think the work product privilege applies, then the duty has probably arisen and it is time to send out a hold notice.