Court Acknowledges That the Duty to Preserve Has Limits

Federico v. Lincoln Military Hous., LLC, No. 2:12-cv-80, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014).

The court refused to dismiss this lawsuit arising from mold in military housing after the plaintiffs delayed their production of electronic evidence; it also declined to shift the costs of the plaintiff’s forensics expert that collected e-mail and social media posts.

In this case, eight military families sued a government contractor for personal injury and property damage. Because the plaintiffs were known to be “very active users of email and social media,” defense counsel sent a detailed preservation letter to the lead plaintiff and subsequently requested production of extensive electronic records. However, when the plaintiffs made their significantly delayed document production, most did not include electronic media. The absence of electronically stored information (ESI) became the subject of discovery disputes between the parties.

After the defendants moved to compel, the plaintiffs spent $29,000 for an outside expert to assist with the electronic production and sought to shift the costs to the defendants. The court opined that plaintiffs did not need to “pay somebody $22,000.00 to do what they should be able to do within a matter of an hour or an hour and a half of looking through their own files.”

The court refused to extend the plaintiffs’ production deadline but required them to advise of the nature of their searches if they failed to meet the deadline. Indeed, the plaintiffs failed to meet the production deadline yet complied with the court’s request and produced letters describing their search criteria. The defendants sought dismissal of the plaintiffs’ case, but the court postponed a decision on sanctions until the plaintiffs’ expert-assisted production occurred.

Ultimately, the court refused to dismiss the plaintiffs’ case. The court found plaintiffs “did eventually produce a nearly complete record of email and social media posts.” Furthermore, the court did not consider the electronic evidence central to the defense of the case, nor did it find that the defendants had established that the plaintiffs deliberately destroyed evidence or otherwise acted in bad faith. However, the court noted that the plaintiffs had been “either initially poorly instructed or deliberately dilatory in their obligations to search for and produce responsive media” and that their ESI production occurred after the motion to compel. Accordingly, the court forced the plaintiffs to bear the fee of their IT consultants as a method of deterring future noncompliance and awarded the defendants $65,000, a portion of the attorneys’ fees for their motion to compel.

The court also rejected the defendants’ request for sanctions targeted at the plaintiffs’ failure to produce text messages from their personal mobile devices. Evaluating the claim under Federal Rule of Civil Procedure 37(e), the court recognized that the loss of text messages was the result of a routine, good faith operation of the mobile service providers’ automatic system; any messages would have been deleted automatically before the duty to preserve arose. The court also reasoned that the plaintiffs themselves had no affirmative duty to preserve these messages, as that would have required them “to understand, prior to receiving any discovery requests, and in some cases prior to ever conferring with counsel, that their voluminous daily text message content could relate to a claim or defense in future litigation regarding their landlord’s response to complaints about mold.”

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As the court recognized, the duty to preserve is not limitless. The anticipation of litigation extends only to evidence a party believes is likely to be relevant—not to every document in its possession. Here, the plaintiffs could not have been expected to look into a crystal ball and predict that their text messages might be pertinent to claims in future litigation.

In addition, although the court found fault with the plaintiffs’ decision to outsource the collection of e-mail and social media, it was likely prudent here as the plaintiffs had resorted to producing hard copies of their Facebook posts. Although some parties may be sophisticated enough to DIY ediscovery, others are certainly not. Either way, shoring up the defensibility of the preservation and collection of evidence under expert guidance is hardly imprudent.