Post Process

Everything to do with E-discovery & ESI

Case Blurb: Asher Assocs LLC; Second Letter with an ‘Emphatic Tone’ Likely Triggered Duty to Preserve

Posted by rjbiii on July 12, 2009

Defendant cites my decision in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 623 (D. Colo. 2007), as support for its assertion that Plaintiff’s correspondence in September 2006 was too vague to trigger a duty to preserve evidence. To the contrary, the facts in Cache La Poudre are completely distinguishable. In that case, plaintiff’s counsel sent the putative defendant successive letters over a nearly two-year period in which she reiterated her client’s desire to explore a negotiated resolution of the parties’ dispute. I concluded that the less-than-adamant tone of counsel’s letters, coupled with the lengthy passage of time, belied the contention that Cache La Poudre’s correspondence had triggered a duty to preserve evidence.

Here, the facts compel a different conclusion. Plaintiff’s letter of September 8, 2006, came quickly on the heels of the Warranty Claim letter sent on September 1, 2008. While the earlier letter had not specifically threatened litigation, the September 8 correspondence adopted a decidedly different and emphatic tone. Plaintiff’s outside counsel characterized the earlier letter as a “failed” attempt to resolve the dispute “without litigation.” Where Plaintiff’s September 1st letter referred to “expenditures” incurred by [Plaintiffs] in connection with [certain] Contracts, outside counsel now indicated that his client had been “significantly damaged,” provided [Defendants] with an “interim damage calculation,” and claimed that “damages continue to accrue.” The September 8th letter demanded an “immediate payment” and imposed a five-day deadline for making that payment. Outside counsel went so far as to identify the specific claims for relief that [Plaintiffs] would assert if it initiated “such legal or other action to enforce its rights.” Given the tenor of the September 8th letter, [Defendants] should have understood that future litigation was reasonably foreseeable and substantially “more than a possibility.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *24-25 (D. Colo. May 12, 2009)(internal citations removed)(emphases added).

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