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Unsettled Law Regarding Third-Parties Responses to Litigation Preservation Demands

Apr 30, 2018 | Posted by Elizabeth Chiba Rein | Topics: Product Liability, Business Litigation, Class Actions

The 2015 Amendments to the Federal Rules of Civil Procedure, attempted to limit the potential for over preservation evidence by mandating that discovery be relevant to any party’s claim or defense and proportional to the needs of the case.  However, the 2015 Amendments have not stopped attorneys from continuing to serve expansive preservation demands, which often include demands on third parties.

It is well established that a third party that reasonably anticipates becoming a party to subsequent related litigation must preserve potentially relevant data.  See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).  Accordingly, a third party that reasonably anticipates becoming a party to subsequent related litigation, must preserve the potentially relevant evidence.  However, the law regarding a disinterested third party’s duty to preserve potentially relevant data is unclear.

On one hand, in Quincy Mutual Insurance Co. v. W.C. Wood Co., 2007 WL 1829378 (Mass. Dist. Ct. June 6, 2007), the court declined to find that a non-party that destroyed a refrigerator was liable for spoliated evidence.  The court reasoned that third parties “do not have a duty to preserve evidence for use by others.”  On the other hand, in Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276 (N.D. Cal. 2015), the court held that a third party had a duty to preserve call logs because it had previously been involved in a similar lawsuit.  The court failed to specify the source of the third party’s duty to preserve or when the duty arose.

Given the unsettled law in this area, third parties should take litigation preservation demands seriously, even if they do not anticipate becoming a party to subsequent related litigation.