Triggering the Duty to Preserve

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In various posts for the Journal blogs Legal eSpeaking and IGIQ, I have written about the duty to preserve electronically stored information (ESI) relevant to litigation. In this post I want to address what might “trigger” that duty. Legal consequences flow from the triggering event and the loss of relevant ESI thereafter may, as readers of Legal-e-Speaking and IGIQ know, lead to the imposition of remedial measures and sanctions.

The duty to preserve is triggered by knowledge of actual litigation or reasonable anticipation of litigation. A recent decision considers the latter but does so not in the context of loss of ESI. Rather, the decision addresses whether “work product” protection can be used to shield documents from discovery. That protection arises when litigation is reasonably anticipated. The reasonable anticipation test is the same for work product protection and the duty to preserve.

Work product is a doctrine recognized by the United States Supreme Court in 1947. Work product encompasses the mental impressions of attorneys (“opinion work product”) and documents that do not contain those impressions (“fact work product”). The former is not subject to discovery. The latter can be if the requesting party can show that “it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means” (Fed. R. Civ. P. 26(b)(3)(A)(ii)). Determination of whether litigation is reasonably anticipated is fact-sensitive, as illustrated by Colley v. Dickenson County School Bd., No. 17CV00003 (W.D. Va. Apr. 18, 2017).

Colley is an employment discrimination action brought by a former public school teacher. She alleged that there was a pay disparity between herself and comparable male teachers. A magistrate judge quashed a subpoena for the production of documents directed to the defendant school board’s attorney. Colley appealed that ruling to the district judge presiding over the action. The district judge reversed the ruling by the magistrate judge after he conducted an in camera review, finding that the documents in issue had been prepared in reasonable anticipation of litigation:

“Colley contends that the defendants have failed to meet their burden to show that the documents were prepared in anticipation of litigation. She argues that the documents were actually prepared to assist in negotiations to correct the pay disparity, and because it is alleged that the School Board told her it would correct this disparity in April 2015, the probability of litigation was not imminent or fairly foreseeable for the period covering the subpoenaed documents. I disagree. From at least April, it was clear to the School Board and Mullins that Colley was asserting a claim against the School Board. She had written a formal letter to Robinson requesting that the School Board correct the alleged pay disparity. She had retained an attorney and ‘attended a [School Board] meeting on the issue with her lawyer present,’ ***, which certainly must have indicated that litigation was fairly foreseeable. Accordingly, I believe that the documents include protected work product prepared in anticipation of litigation.”

The district judge went on to find that the fact work product in the documents was not discoverable:

“However, Colley already has some salary comparisons previously provided to her and she can obtain any other relevant information about School Board employees through the normal discovery process, even if she cannot obtain the work-product material of the School Board’s attorney.”

Colley demonstrates the fact-sensitive nature of the inquiry into whether there is a reasonable anticipation of litigation. For the health information professional, it also demonstrates the need to include in any information governance framework the legal and regulatory competency of AHIMA’s Information Governance Adoption Model (IGAM) such that, once there is a triggering event, records retention schedules are suspended for relevant ESI and physical things and, with the assistance of counsel, preservation, collection, and review can occur.

 

**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.

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