Every plaintiff and defendant has a duty to preserve evidence, and this duty arises even before litigation commences. The flexible legal standard for when this duty begins is when the litigation is “reasonably foreseeable.” Although plaintiffs in a lawsuit are reacting to a harm or injury inflicted upon them, they are the ones who actually “pull the trigger” by filing suit. Does this standard of “reasonable foreseeability” in regard to the duty to preserve evidence arise earlier for plaintiff electronic document discovery than for the defense production?
Consider the well-known case Micron Tech. v. Rambus, 645 F.3d 1311 (Fed. Cir. 2011). While not getting into the complex procedural history of the case, Rambus developed software and sought licensing revenues and litigation damages under patent laws. Over a year before filing multiple patent lawsuits, Rambus instituted new policies regarding document retention, which included destroying emails and email analytics older than three months and the systematic destruction of electronic databases and documents.
The issue at hand before the U.S. Court of Appeals for the Federal Circuit was whether Rambus’ document retention policies, set in place over a year before the lawsuit was filed, constituted spoliation. The court ruled against Rambus and found the company had engaged in spoliation, noting that it was more likely for the patentee to reasonably foresee litigation than for the defendants.
This case is an example of the reasonably foreseeable standard affecting plaintiff discovery sooner in time than it would affect the defense production. Corporate entities should have long-standing policies of regular and systematic destruction of electronic documents if they want their actions to be viewed as “good housekeeping” and not spoliation if they ever become plaintiffs in a lawsuit. Although individuals in a class action lawsuit might have less-burdensome plaintiff ESI productions, it still holds true that any destruction of electronic data or documents prior to filing may have an adverse effect on the ensuing litigation.