When Should A Plaintiff Withdraw Its Motion For A Protective Order?

When Should A Plaintiff Withdraw Its Motion For A Protective Order?

Communication is key to any joint status report!  Parties should not risk annoying the court by refusing to withdraw a motion when both sides are essentially in agreement.  The court will find a protective order unnecessary when the defendants completely understand their preservation duties, acknowledge their duties, and have made substantial efforts to preserve discoverable evidence.  Under such circumstances, the plaintiff or moving party will both lose the motion and risk wasting the court’s valued time.

In McDaniel v. Loyola University Medical Center, McDaniel, the plaintiff, filed a motion seeking a document preservation order after learning that the Loyola University Medical Center, the defendant, planned to change its e-mail system provider.  The defendant was transitioning from GroupWise to Microsoft Office, and the plaintiff feared that relevant e-mails would be erased or lost.  In response, the court directed the parties to confer in an effort to resolve the preservation issue in a mutually agreeable way.  In the submitted joint status report, the defendant demonstrated its belief that it had adequately assured the plaintiff of his spoliation concerns; however the plaintiff was still unwilling to withdraw the motion.

As a starting proposition, a party has a duty to preserve evidence if it reasonably knew or could reasonably foresee was material to a potential legal action.  Almost a year before the plaintiff filed his initial complaint in this case, the defendant issued litigation holds and constant reminders to 71 employees who may have information relevant to the litigation.  Furthermore, the defendant took similar precautions with the additional 20 custodians identified by the plaintiff.  Despite the defendant continually recognizing that it was under an obligation to preserve evidence, the plaintiff needlessly insisted that a preservation order was a necessary additional precaution.

The court disagreed with the plaintiff and held that a preservation order was unnecessary.  When deciding whether to enter the preservation order, the court considered (1) whether the plaintiff demonstrated that the defendant would destroy evidence, (2) whether the plaintiff would suffer irreparable harm without a preservation order, and (3) the burden that likely would result from granting the protective order.  Here, the defendant was fully apprised of the scope and gravity of its preservation duties, and the plaintiff failed to demonstrate that the defendant would destroy evidence without a preservation order.  The court found that a protective order would be superfluous and needlessly burdensome in this case.  Moreover, the court noted in its decision that the parties appeared to be talking past each other and, in actuality, were in complete agreement regarding the defendant’s preservation duties.

Lawyers must avoid submitting superfluous and needlessly burdensome motions to the court.  Do not waste the court’s valuable time with unnecessary motions on issues that have already been mutually agreed on by both parties.  The last thing any lawyer should want to do is to get on a judge’s bad side during the discovery stage of the litigation.



Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.

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