The duty to preserve potentially relevant data extends to when “litigation is reasonably foreseeable.” This broad standard, in today’s big data world, can make it complicated for businesses to clearly communicate when litigation is likely and burdensome to implement processes to find and preserve that data.
The defendants moved for spoliation sanctions against the plaintiff, alleging failure to preserve relevant data from sources including WeChat and KakaoTalk mobile messages.
The plaintiff filed suit in this trade dress violation and unfair competition lawsuit in Feb. 2019, alleging that the defendant had sold a hair product with packaging resembling their own. Plaintiff issued a legal hold, including sending a letter to its customers requesting they preserve records relating to their products and other products that may have infringed on their intellectual property rights.
During e-discovery, the following occurred:
The plaintiff argued that their president did not intentionally delete responsive data. As a result, the defendants filed a spoliation motion for not preserving the requested text messages.
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Different courts have identified different triggers for when preservation duties attach, ranging from when litigation is “reasonably foreseeable” to when it is “reasonably anticipated” to when it is “likely” or “imminent.” Magistrate Judge Merkl adopted the “reasonably foreseeable” standard here, but declined sanctions, did not impose attorneys’ fees, and reserved ordering any curative measures for lost data because there was no FRCP 37(e) showing of intent to deprive or prejudice from the loss of data.