Federal law on preservation affects many individual and corporate
citizens every day, yet it is constantly in a state of flux and has
evolved in fits and starts as a product of individual court decisions.
The 2015 amendment to Rule 37(e) has done a good job of
making the law on spoliation more consistent in US federal
courts, but the Rules Committee dodged defining the trigger
for preservation; it is still determined by the common law. 2
Moreover, opinions conflating the triggers for work product
protection and preservation obligations introduce confusion
into an area that needs more clarity, not less. Litigants, particularly
those not equipped with large in-house legal departments and
counseled by sophisticated attorneys, risk being shut out of our
federal courts by the increasing complexity of e-discovery
requirements. A requirement that a preservation notice be issued
in every case where a company lawyer marks a memo “work
product” is exactly the kind of trap for the unwary that the 2015
amendments were designed to eliminate.
This article first explores some of the decisions that mix the
preservation and work product protection triggers. We then
discuss why courts should reject the false equivalence between
these two triggers that some have embraced.
Some federal courts have
conflated the triggers for
work product protection
and document preservation
As noted, under US federal law, the duty to issue a litigation hold
and the availability of the work product protection both nominally
toggle on when a party “anticipates” litigation, and this has
produced an easy equivalence between the two triggers in the
eyes of some courts. Some cases have linked the triggers for work
product protection and the duty to preserve, noting in dicta that
the two are essentially the same.
In Crown Castle USA, Inc. v. Fred A. Nudd Corporation, the court
determined the duty to preserve was triggered when plaintiff first
marked communications with a work product legend. 3 Defendant
sought sanctions for spoliation of electronically stored information
(ESI). Internal emails marked as work product suggested that
plaintiff explored the possibility of bringing a claim against
defendant’s insurance carrier eight months before filing suit.
Without considering the inefficiencies associated with over-preservation, the court held that plaintiff’s obligation to preserve
evidence arose eight months before suit was commenced, when
several of plaintiff’s employees first considered filing a notice of
claim and instituted a practice of labeling defendant-related
communications as work product.
The US District Court for the Eastern District of New York reached
a similar conclusion in an employment case, Siani v. State Univ. of
N. Y. at Farmingdale, holding that if litigation was foreseeable for
work product purposes, it was reasonably foreseeable for
preservation purposes. 4 Plaintiff alleged that defendant
2 One of the authors submitted a proposal to the Rules Committee, which was endorsed by the Lawyers for
Civil Justice, that the trigger for preservation be fixed as the commencement of a litigation. http://www.
3 No. 05-CV-6163 T, 2010 WL 1286366, at 1 (W.D.N. Y. Mar. 31, 2010).
4 2010 WL 3170664 (E.D.N. Y. Aug. 10, 2010).
intentionally deleted emails as shown by gaps in defendant’s
production of electronic messages and that plaintiff accordingly
was entitled to an adverse inference finding based on spoliation.
Defendant argued that the duty to preserve only arose when it
received notice that plaintiff had filed an Equal Employment
Opportunity Commission claim on July 16, 2008. Plaintiff
maintained that a duty to preserve actually arose five months
earlier, when defendant hired a law firm “to obtain legal advice
in connection with issues” related to plaintiff and first marked
materials as work product. The court explained that if litigation
was reasonably foreseeable for work product purposes, it was
reasonably foreseeable for all purposes—including affirmative
preservation obligations. Subsequent courts have relied upon
the decision in Siani to explain that the duty to preserve evidence
arises no later than the first assertion of the attorney work
product privilege. 5
A similar analysis was applied by the Eastern District of Virginia
in one of e-discovery’s more notorious cases: Samsung Elec.
Co., Ltd. v. Rambus, Inc. 6 Plaintiff alleged that four patents held
by defendant were unenforceable. Defendant developed and
licensed patents to companies that manufactured semiconductor
memory devices, and had instituted a “Licensing and Litigation
Strategy” aimed at several manufacturers, including plaintiff.
Evidence showed that defendant’s licensing and litigation strategy
included a pervasive document destruction program designed to
dispose of discoverable documents and ESI.
The issue before the court was whether defendant’s document
destruction program constituted spoliation and warranted the
imposition of sanctions. To determine if spoliation occurred, the
court relied upon the work product protection test in evaluating
when defendant anticipated litigation. The court held that
defendant “clearly and convincingly” engaged in the spoliation of
evidence while it anticipated litigation and when actually engaged
in litigation. The court’s reliance on the work product protection
test as a “helpful guide when assessing intentional spoliation”
demonstrates how some courts have equated the trigger for the
duty to preserve with the trigger for the work product protection.
5 Lending Tree v. Zillow, Inc., No. 3:10-CV-00439, 2014 WL 1309305, 10 (W.D. N.C. March 31, 2014)
(explaining that plaintiff’s “duty to preserve evidence arose no later than its assertion of the attorney work
product privilege”); Cornelisse v. United States, No. 09 Civ. 5049(JCF), 2012 WL 933064 (S.D.N. Y. Mar. 20,
2012) (noting that the analysis of when an entity reasonably anticipates litigation for work product and
preservation “is essentially the same”).
6 439 F.Supp.2d 524, 527 (E.D. Va. 2006).
“Reasonable anticipation of litigation” is
the commonly accepted trigger for the
duty to preserve discoverable evidence…
the work product doctrine protects
materials prepared “in anticipation of
litigation” from discovery, but two very
different conditions are described by
these similar-sounding phrases.