Does the duty to preserve electronic data require preserving information that the party believes is irrelevant to the litigation?

What electronic data should a company preserve?

Author: Carla Zavala
Case Citation: Marten Transp., Ltd. v. Plattform Adver., Inc., No. 14-cv-02464-JWL-TJ, 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
Employee/Personnel/Employer implicated: Employer
eLesson Learned: The duty to preserve electronic data only attaches to the information that the party has reason to believe is relevant to the litigation, at the time the party finds out it is relevant.
Tweet This: No spoliation sanctions for deleting e-data that seems irrelevant to litigation.

Most businesses know that once litigation begins, they have a duty to preserve all electronically stored information that might be relevant to the lawsuit. What many people do not know, however, is when this duty attaches and what they are required to preserve. Should a business just freeze all data maintenance at the first mention of the word “lawsuit?” Does the duty to preserve data include an entry-level employee’s emails about lunch plans?
The court in Marten Transport, Ltd. V. Plattform Advertising, Inc., interpreted then-newly amended Rule 37(e) to examine the timing and scope of a company’s duty to preserve. The plaintiffs, a trucking company, brought a suit against the defendants for misusing their trademarks. The plaintiff hired the defendant to post job openings on the defendant’s website. According to the plaintiff, the defendant had continued to post on the plaintiff’s behalf even after their business relationship ended, which they believe infringed on their trademarks. The plaintiff sent a letter to the defendant in Fall 2013, threatening to sue for trademark infringement.
The plaintiff finally filed a complaint against the defendant in September 2014. In June 2015, the defendant sent a letter to the plaintiff alleging that, in its investigation, it had discovered that one of the plaintiff’s employees had admitted in an email to a third party to having posted on the defendant’s website after the business relationship had terminated. By the time the defendant discovered this email, however, the plaintiff no longer had access to the employee’s internet history. The defendant sought spoliation sanctions against the plaintiff for failing to preserve the employee’s internet history.
The court denied the sanctions. It found that Rule 37(e) requires a party to take reasonable steps to preserve information. The rule requires that the court take into consideration “the routine, good-faith operation of an electronic information system” when determining whether the party acted reasonably to preserve information. Here, the information at issue was lost when the employee’s computer was replaced during routine maintenance. Crucially, the computer was replaced in April 2014, before the defendant raised the defense that the plaintiff’s own employees were posting the job listings. By the time the issue was raised in the litigation, the computer had been donated and the information was lost permanently.
Under the court’s interpretation of Rule 37(e), just because the duty to preserve has attached, does not mean that it has attached to all electronically stored information. The duty to preserve only applies to the data that the party has reason to know will be relevant in the litigation. The company does not need to preserve the entry-level employee’s email about lunch plans, unless it has reason to believe the lunch will be implicated in the litigation.
Carla Zavala is a student at Seton Hall University School of Law (Class of 2017). She is a member of the Seton Hall Law Review, where she serves as Senior Articles Editor. In Fall 2016, the Seton Hall Law Review published her student comment, Manslaughter by Text: Is Encouraging Suicide Manslaughter? She is also a student attorney at the Seton Hall Law School Center for Social Justice’s Equal Justice Clinic. After graduation, Carla will serve as a clerk to a judge of the Superior Court of New Jersey, Appellate Division.

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