The duty to preserve evidence is normally triggered by the filing of a lawsuit. However, the duty may arise even earlier when there is a mere “possibility” of a lawsuit. Problems arise because the legal system has grown more and more every day and lawsuits are always a “possibility”.

Thus, courts have found that when there is an unequivocal notice of litigation, the party absolutely has a duty to preserve but there must be more than just a mere “possibility” of a lawsuit for the duty to be triggered. Courts will determine when that duty arises based on the facts of each individual case.

The Court examined this issue in Cache La Poudre Feeds LLC v. Land O’Lakes, Inc. Cache La Poudre Feeds sought several discovery sanctions and orders from the court. Most notably, they asked for a special master to be appointed to analyze whether Land O’Lakes complied with their duty to preserve evidence pursuant to litigation. Their intention was to obtain spoliation sanctions because the information the relevant information they sought was not properly preserved.

So the issue was, when is the duty to preserve triggered?

The Court held that the duty to preserve evidence is not necessarily dependent on the tender of a preservation letter, but the duty to preserve must be predicated on something more than just mere discontent.

So, it becomes a factual issue. In this case, letters were sent from one party to the other about a future lawsuit. The Court found that a demand letter alone MAY be sufficient to trigger the duty to preserve evidence and thus the subsequent spoliation sanctions. However, the letters in this matter did not rise to the level that would trigger the duty.

The Court stated that a demand letter must be explicit. Further, the Court recommended that the party sending the demand letter should address the preservation obligations. This approach is designed to ensure that both parties are on clear notice of a lawsuit and the obligations that arise to preserve evidence.

The Court’s rule undoubtedly will create some confusion about when the duty to preserve evidence is triggered. However, the Court quickly points out that any other result would have dangerous affects on potential litigants.

Those litigants would be faced with a dilemma. The litigant would either preserve a large amount of evidence at a potential great expense or continue with standard deletion practices that put them at risk for future spoliation sanctions. Either way, they’re going to have to pay.

So what does this all mean? It seems as if this Court has taken the approach that if you want an opposing party to preserve evidence, you must be explicit and clear that litigation is forthcoming and that they have a duty that requires certain evidence to be retained.

The Federal Rules of Civil Procedure recognize that suspending or interrupting automatic features of electronic information systems can be prohibitively expensive and burdensome. The Court found that it is unrealistic to expect parties to stop such routine operation of their computer systems as soon as they anticipate litigation. It is also very undesirable because there would be greater accumulation of duplicative and irrelevant data that must be reviewed, making discovery more expensive and time consuming.

So, if you want evidence to be saved, be explicit. If you have the evidence, and you know about the litigation, then you should preserve it accordingly.

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