When I speak to e-discovery experts of all kinds about preservation, be they law firm lawyers, big or small, in-house corporate counsel, government lawyers, scholars and academics, insurance company lawyers, paralegals, lit-support, vendors, or technology gurus, they all have a common refrain. They all lament about the murky issue of when a duty to preserve is triggered. As David Letterman said: “Next in importance to having a good aim is to recognize when to pull the trigger.”
The general rule of law is simple, but vague. A duty to preserve is triggered when litigation is reasonably foreseeable. But when is litigation reasonably foreseeable? Whole treatises have been written 0n this issue and how to make the determination. Best among them is The Sedona Conference’s Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version) (The preservation duty is either triggered by service of process or earlier by “notice of a ‘credible threat’ of litigation.”) It reminds me of what Letterman says: “Traffic signals in New York are just rough guidelines.”
One case I have written about before went so far as to find that a duty to preserve arose eight years before suit was filed! Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., 2009 WL 910801 (D.Utah March 30, 2009). Magistrate Judge David Nuffer reached this clairvoyant trigger date based upon his supposition that everyone in the floppy disk industry should have known they would be sued for patent infringement someday. I figured this bizarre opinion would be appealed and reversed. But the magistrate a year later denied the motion for sanctions, stopping any appeal to the District Court Judge, unless it is by the moving party. Phillip M. Adams & Associates, L.L.C., v. Dell, Inc, 2010 WL 2977228 (D. Utah July 21, 2010). Too bad that moots my bet with a New Yorker turned Texan, Craig Ball, who disagreed with my critiques of this case and bet that the hair-trigger hold opinion would be upheld on appeal. Reminds me of a David Letterman joke:
People say New Yorkers can’t get along. Not true. I saw two New Yorkers, complete strangers, sharing a cab. One guy took the tires and the radio; the other guy took the engine.
Lawyers, paralegals, and others charged with deciding whether to implement a litigation hold, which is often a very difficult, expensive and troubling procedure, all wish for some kind of bright line. They want a more certain guide than reasonable foreseeability as to when to start the expensive preservation procedures. By the way, a litigation hold is not just a preservation notice and is far from a simple form, as most still wish. It is a process. This was explained well by Craig Ball in a vendor White Paper he wrote recently with Brad Harris: The Enlightened Legal Hold.
No. A litigation hold is not just something you set and forget. It’s a whole journey. And depending on the company and the threatened litigation, it can be a very expensive trip indeed. It is not a process to invoke lightly. It could well cost a large company many thousands of dollars to implement and could burden and disrupt many people. As Letterman said: “Sometimes something worth doing is worth overdoing.”
You do not want to guess wrong, start an expensive process, only to learn later that it was a false alarm. You tell everyone the company is about to be sued and then nothing happens. In the meantime the emails pile up. Pretty soon you become like the boy who cried wolf and no one takes you seriously. Your overused process becomes a joke. That is not a good thing. You want to be sure that when you invoke a litigation hold you are not making a mistake.
Against this backdrop, the ruling in a new case out of the Eastern District of New York suggesting a bright line for hold triggers seems like good news. Siani v. State University of N.Y. at Farmingdale, 2010 WL 3170664 (E.D.N.Y., Aug. 10, 2010). But, as they say, be careful what you wish for.
Siani v. SUNY Farmingdale
Siani is a pro se case by a disgruntled professor, Dominick Siani, who claims age discrimination. Professor Siani teaches business and is a CPA. As Letterman says: “There’s no business like show business, but there are several businesses like accounting.” Professor Siani likes to sue his university employer and has apparently been reading up on e-discovery recently because he filed a motion seeking a “’finding of adverse inference’ based on the defendants’ alleged spoliation of electronic records.” Id. at *1. Based on the motion and opposing motions and affidavits, Magistrate Judge William D. Wall responded to this pro se tempest by scheduling an evidentiary hearing. Pro se or not, Judge Wall was not pleased by the defense witness testimony. You wonder if he was thinking what Letterman is famous for saying: “Sometimes when you look in his eyes you get the feeling that someone else is driving.”
Judge Wall begins his analysis with the key, threshold question as to when the defendant’s duty to preserve begins. He begins the legal discussion in the tradtional way by citing to Zubulake, which in turn quoted Fujitsu:
As will be discussed in greater detail later, a duty to preserve evidence “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS War-burg LLC (“Zubulake IV”), 220 F.R.D. 212, 216 (S.D.N.Y.2003) (quoting Fujitsu Ltd. v. Federal Ex-press Corp., 247 F.3d 423, 436 (2d Cir.2001)).
Then he points to the facts of the case, where the lawsuit was filed January 30, 2009, but Professor Siani claims the University employer should have instituted a lit-hold a year earlier, in late January 2008. That was when the Professor wrote a really stern letter to the President of the University expressing his concerns about “Potential Discriminatory Behavior,” noting his belief that there existed “facts and circumstances that support a prima facie case of age discrimination, disparate treatment and retaliation regarding … the designation of the Business Management Department Chair.” Id. I am guessing here that Professor Siani wanted that position, but did not get in it, and it instead went to a younger professor. So he was griping to the President, noting that “he would be pursuing several paths of investigation, including the SUNY Discrimination Complaint Procedure and FOIA requests.” Id.
Note that the good professor did not expressly threaten litigation and this was not even a letter from a lawyer. Still, he argued that this letter should have triggered SUNY’s duty to preserve and the university should have responded by commencing expensive, extensive, lit-hold procedures. The university did nothing of the sort and people continued their usual email deletion procedures. It did not start a litigation hold process until late July 2008 when notified that Professor Suni had filed an EEOC complaint. That is when defendants’ concede their duty was triggered, not before.
Bright Line Duty To Preserve
Now we come to the court’s statement of a bright line trigger, one which seems clear enough, but you may still not like. It is not what you would expect from the limited statement of facts I have provided so far. Judge Wall did not agree that the filing of the EEOC was a bright line trigger. No, he found that the duty to preserve had arisen before that. But, he did not agree it was triggered by the Professor’s letter either. The bright line was found in the invocation of work-product by the university’s lawyers.
Yes, defense counsel was hoist with their own petard. To add yet one more old apt saying, defense counsel tried to have their cake and eat it too, and the Judge would have none of that. They went too far. It is simple logic. Consider the statutory definition of work product protection in Rule 502, Federal Rules of Evidence:
(2) “work product protection” means the protection for materials prepared in anticipation of litigation or for trial, under applicable law.
If you assert facts that allow you to claim the additional privacy protections afforded by an attorney work-product privilege, the right that an attorney has to keep his communications, actions, thoughts, and mental impressions of counsel secret, then these same facts also show that litigation was reasonably anticipated. That is because the factual basis for work-product and preservation are logically consistent, if not identical. If you are preparing for litigation, and thus entitled to the secrecy protections of the work-product doctrine, then you must anticipate litigation and so have a duty to preserve. Why would you prepare for something that you were not anticipating?
There is one nearly inviolate rule in the Law, never say never. I cannot think of a situation where the reasonable invocation of the work product privilege would not also create a duty to preserve. But that does not mean that some strange fact pattern out there may well exist, or arise someday, where the two do not go hand in hand. It just means I cannot think of one now. I exclude facts where attorneys unreasonably or improperly invoke the work-product privilege, although I readily concede it happens all of the time. I assume if this happened, the attorneys would admit their mistake and not try to hang onto the work-product privilege. It is foolish not to admit a mistake and can lead to mean-spirited arguments you’ll later regret, as we see here. David Letterman said it well: “The worst tempered people I have ever met were those who knew that they were wrong.”
If you are going to eat your cake, then you can’t have it too. Choose one or the other, but don’t choose both like defense counsel did in Siani v. SUNY Farmingdale.
Defense counsel in Siani argued that certain documents dated February 2008 were protected by the work product doctrine, having been prepared “in anticipation of litigation.” Moreover, the facts showed that defense counsel was retained by the university because of and immediately after Professor Siani’s January 2008 stern letter to the President. By the way, did I mention that the good professor had sued the same university before, pro se, and won? Oh yeah. They apparently took him quite seriously. Defense counsel argued to the court that Siani had raised “concerns that he was a victim of ongoing age discrimination” at a meeting in January 2008, and that “[l]itigation was therefore reasonably foreseeable” as of that date. Id. at *5. As David Letterman likes to say: “For the love of God, folks, don’t try this at home.”
The professor took delight in turning that argument around on defense counsel. As Letterman likes to say: “There is no off position on the genius switch.” The logic was impeccable and Judge Wall had to agree. He held that defense counsel had “cited no authority that would countermand the common sense conclusion that if the litigation was reasonably foreseeable for one purpose in January 2008, it was reasonably foreseeable for all purposes.” It is common sense because information is only qualified for protection as work product if it is generated or prepared in anticipation of litigation. See Eg., Wichita Eagle & Beacon Pub. Co. v. Simmons, 50 P.3d 66, 85 (Kan. 2002); Miller v. J.B. Hunt Transp., Inc., 770 A.2d 1288, 1291-93 (N.J. Super. Ct. App. Div. 2001).
Even though the defendant lost its logic-flawed argument on when the duty to preserve commenced, it still eventually prevailed over the pro se plaintiff on his attempt to win an adverse inference instruction. Here is how Judge Wall begins his analysis:
A showing of breach of the duty to preserve is only the first step in the imposition of an adverse inference ruling. A party seeking spoliation sanctions must also show that the relevant records “were destroyed with a culpable state of mind.” Toussie, 2007 WL 4565160 at *7 (citing Zubulake, 229 F.R.D. at 430). In the Second Circuit, this prong of the spoliation test can be “ ‘satisfied by showing that evidence was knowingly … or negligently’ destroyed.” Id. (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.2002)). …
The defendants here did not, however, fail to implement a litigation hold “at the outset of litigation.” Indeed, they began the hold in July 2008, six months prior to the “outset of litigation.” The fact that they delayed the hold for months past the time when they could reasonably have anticipated the litigation does not per se amount to gross negligence. If a delay of any length was tantamount to gross negligence and thus illustrative of a culpable state of mind, there would not be two separate elements for the plaintiff to prove. But there are two elements, and establishing a breach of the duty to preserve is separate from establishing a culpable state of mind.
Id. at *8.
Unfortunately for defense counsel, they lose on the culpability point too. They may have implemented a lit-hold, but, according to the judge, they did not do it properly.
Thus, there was negligence, if not gross negligence, in the implementation of the preservation efforts, and the culpable state of mind requirement is satisfied in this Circuit by a showing of ordinary negligence. See Residential Funding, 306 F.3d at 101; see also Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413, *4 (S.D.N.Y. May 23, 2006). “Where only ordinary negligence is established … the party moving for an adverse inference instruction must prove relevance,” and I turn now to that element. Zubulake IV, 220 F.R.D. at 220; see also Phoenix Four, 2006 WL 1409413 at*4.
But the test for sanctions from spoliation continues to the last and final step, where the defense finally wins because Professor Siani fails to prove that anything relevant was actually destroyed. Here is how Judge Wall pulls it all together:
*9 To satisfy the third prong of the spoliation claim, Siani must establish that the missing emails were relevant evidence, and that the destroyed evidence would have been favorable to him. Residential Funding, 306 F.3d at 109; see also Zubulake V, 229 F.R.D. at 430. In this context, the term “relevance” means “something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.” Residential Funding, 306 F.3d at 108-09. Courts should take care not to hold the movant to “too strict a standard of proof regarding the likely contents of the destroyed evidence.” Id.
Relevance may be demonstrated in two ways. “First, it may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.” Triple 8 Palace, 2005 WL 1925579, at * 8. Siani argues here that the defendants were grossly negligent and acted in bad faith and that relevance is thus established. I have found, however, that there was no gross negligence, and the record overall does not rise to “the egregious level seen in cases where relevance is determined as a matter of law.” Toussie, 2007 WL 4565160. “[O]nly in the case of willful spoliation is the spoliator’s mental culpability itself evidence of the relevance of the documents destroyed.” Here, I find that, based on the defendants’ submissions in opposition to the motion and on the testimony at the hearing, that there was no willful spoliation, although the preservation efforts on the part of the defendants were not exemplary.
The second way to establish relevance is for the moving party to submit “extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it.” Triple 8 Palace, 2005 WL 1925579, at * 8 (citation omitted). In order to obtain an adverse inference, the destroyed evidence must “have been of the nature alleged by the party affected by the destruction.” Id. In other words, Siani must present extrinsic evidence tending to show that the destroyed e-mails would have been favorable to his case, and where “ ‘there is no extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate.’ ” Zubulake IV, 220 F.R.D. at 221 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y.1991).
Siani has produced no extrinsic evidence to meet this burden, instead relying exclusively on his argument that the defendants acted in bad faith. The parties agree that many of the emails on the missing logs were actually produced to Siani by the other parties. He might have come forward with samples of those emails showing that they were relevant and favorable to him and thus suggestive that any missing emails were also likely to be relevant and favorable. He has not done so. Indeed, he has not pointed to any emails as rising to the level of relevance and favorability that must be shown. Because there has been no showing of relevance, the motion for an adverse inference ruling must be denied.
What is the lesson here, aside from the obvious of how dangerous clumsy preservation efforts can be, even when you are only up against a pro se plaintiff, albeit a smart one? It is a lesson to attorneys everywhere. Do not claim work-product unless you really mean it. Do not invoke it unless you are contemplating litigation, either prosecuting or defending. If you are, at the same time go ahead and advise the client to initiate a lit-hold process. Think of these two doctrines as being tied at the hip. Change your way of thinking about work product to include preservation triggers. As Letterman says: “I’m just trying to make a smudge on the collective unconscious.”
A point of caution: do not confuse the client’s more limited attorney-client privilege with the attorney’s expansive work-product privilege. The attorney-client privilege basically applies to any confidential communication between an attorney and a client. There is absolutely no requirement that it pertain to litigation, either anticipated or not. So an attorney can certainly consult with a client in confidence about a claim or possible dispute, without their being a duty to preserve, so long as they do not think litigation is likely, and this thought is a reasonable one, not just delusional wishful-thinking. The communications would be protected by the attorney-client privilege, but not the more expansive work-product privilege. I can think of many examples of this. In fact, they are common to the practice of the law.
Attorneys should not invoke their work-product privilege lightly. The should not add this additional level of confidentiality and secrecy to their communications and actions unless they really believe litigation is reasonably likely. Attorneys should not to try to veil communications with work-product secrecy and at the same time allow clients to continue to delete emails and other ESI that is likely to be evidence. I for one cannot think of any circumstances where attorneys can enjoy the expanded protection that the work product privilege provides, without the client at the same time assuming the preservation burdens. As Judge Wall said, it’s a common sense conclusion.
This is the bright line – the proper invocation of the work-product privilege. This may not be the answer that attorneys were looking for, but at least it’s clear.
I leave you with a deep Letterman thought: “Everyone has a purpose in life. Perhaps yours is watching television.”
And a recent video of you know who doing one of his typical monologues: