Post Process

Everything to do with E-discovery & ESI

Preservation on Demand (Maybe)

Posted by rjbiii on November 14, 2007

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]

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