Preservation on Demand (Maybe)

Tom Lahiff, blogging on Retention and Preservation, writes a great post about the effect of demand letters. The narrative takes a surprising turn when he discusses not only the letter’s effect on the recipient, but also on the sender:

Two recent decisions by magistrate judges resolving motions for sanctions based on defendants’ discovery violations illustrate that (i) a party’s own conduct can inadvertently trigger an obligation to preserve, and (ii) unless a demand letter is specific regarding the possibility of litigation, a court might refuse to find that receipt of such a letter triggered an obligation to preserve. Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007); Cache La Poudre Feeds, LLC. V. Land O’Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007).
[...]
Indeed, depending on the circumstances, it may be that by sending a demand letter you may have imposed a duty on yourself without imposing a corresponding duty on the other side.

Neat little twist, there; isn’t it? Read the rest of the article, you’ll be glad you did.

[HT: Information Governance Engagement Area]

Case Blurb: Alcoa, Inc., Demand Letter and Reasonable Anticipation of Litigation.

The propounding of a demand letter has been found to be the point when litigation should be reasonably anticipated. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Housing Rights Center v. Sterling, 2005 WL 3320739 (C.D.Cal.2005)).