Party Negotiated Preservation Orders: An Avenue for Cooperation and Resolution of Cases on the Merits
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The Benefits of a Preservation Order:
Spoliation of relevant Electronically Stored Information (ESI) is a serious concern for litigants in both Federal and State court actions. Because of records retention measures that may be in place at an organization, such as automatic deletion of emails after a certain time period has elapsed, and because of litigants’ potential ignorance of their duty to preserve, it is prudent to seek avenues to ensure that both your own client and the opposing party are proactively preserving ESI from the onset of their duty to preserve.
One such avenue is to negotiate a Preservation Order with the other party(ies) to an action. A Preservation Order builds certainty and clarity into the questions associated with a party’s duty to preserve, and can serve to take preservation issues off the table from the inception of litigation. Preservation Orders also minimize the use of preservation issues as a trap or a litigation strategy, and make it more likely a case will be determined on the merits.
Furthermore, taking the steps necessary to preserve relevant ESI brings with it certain costs and risks, which can be minimized by a Preservation Order. Over preservation is costly due to storage costs and the risk of preserving ESI that, but for the decision to preserve in the present litigation, could have been defensibly deleted. Such ESI may later become discoverable in a currently unforeseen lawsuit or regulatory investigation, causing parties to incur potentially avoidable costs. Conversely, under preservation could lead to costly or even case dispositive sanctions.
How to go about obtaining a Party Negotiated Preservation Order to present to the court:
Once you have determined that a Preservation Order is desirable in a particular matter, how do you go about working with opposing counsel to have an Agreed Preservation Order presented to the court?
- Make a proposal to opposing counsel.
Reach out to opposing counsel to seek agreement on, first, the decision to request the court enter a Preservation Order, and, second, the details and terms of that order. In Federal Court, this may be addressed in connection with, or even prior to, the Rule 26(f) meeting of counsel. In State Court you may simply ask opposing counsel to join you in a meet and confer to address the issues presented by the obligation to preserve.
Once the conversation is started, even if the parties cannot agree on every aspect of the other’s preservation duty, they should be able to agree in some areas. They can then present their respective proposals on the disputed areas to the court and ask the court to decide.
- Decide what should be included in the order. 
- Litigation Hold issues:
- Have Litigation Holds been issued?
- Are the holds being updated?
- May the scope of the hold be limited?
- May the number of custodians be limited?
- Provide names and/or general job titles or descriptions of custodians from whom ESI will be preserved.
- Determine number of Custodians for whom ESI will be preserved.
- What types of ESI are to be preserved: e-mails, voicemails, texts, Word documents, databases, etc.?
- What types of ESI need not be preserved?
- Date Ranges:
- What are the ranges of creation or receipt dates for any ESI to be preserved?
- Auto delete:
- Ensure auto delete was halted with the Litigation Hold.
- Determine whether or not to continue the overriding of auto delete for e-mails, voicemails, videos, and other ESI.
- List systems, if any, that contain ESI not associated with a custodian that should be preserved such as enterprise databases.
- Determine if any disputes exist regarding scope and manner of preservation that will need to be negotiated or addressed by the court.
- Decide what should be excluded from the order
- Describe data from sources a party believes could contain relevant information, but because of proportionality factors should not be preserved.
- Determine whether the burden of preserving the sources of ESI outweighs the chance the source contains relevant information of probative value.
- Describe the data from sources that are not reasonably accessible pursuant to FRCP 26(b)(2)(B) and whether they will be preserved but not reviewed or produced.
- Determine whether certain information is available in more accessible forms.
- Describe, for example, legacy data and make a determination of whether the duty to preserve should attach.
- Decide how you will present the Proposed Preservation Order to the Court
Once the parties have discussed their respective views on the scope and content of the proposed Preservation Order, they can determine which issues they are able to agree on and which issues will need to be determined by the judge. One avenue for presenting an Agreed Preservation Order to the court is through a Joint Motion and Agreed Stipulation for Entry of Preservation Order. In it the parties may (i) state that they have come to an agreement that a Preservation Order should be entered, (ii) list the areas where the parties agree, (iii) enumerate the issues where the parties cannot agree, with proposals from each party as to a possible solution, and (iv) request that the court make a decision regarding the issues of non-agreement and enter a Preservation Order encompassing those issues and the agreed terms. If desirable to conserve costs, in the Joint Motion, the parties may request the court to rule on the motion and enter the Preservation Order “on the papers” without the necessity of oral argument.
Party negotiated Preservation Orders are a good way to institute cooperation from the beginning of litigation. If you find your opponent is unwilling to cooperate, you might suggest that agreeing on preservation issues at the outset is less costly and time-consuming than litigating over preservation issues once document discovery and depositions commence. A party negotiated Preservation Order will serve to help to ensure that (a) both sides have preserved the important, relevant data in order to have the case determined on the merits and avoid sanctions, and (b) neither side has wasted resources in over preservation.
 Two helpful resources referenced below are (1) U.S. District Court N.D. Cal. Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information (available here), and (2) U.S. District Court, District of Minnesota Discussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners (available here).
This post was first published on July 26, 2016, as an article written by Ms. Clark on behalf of the Electronic Discovery and Digital Evidence Committee, Business Law Section of The Florida Bar, for The Florida Bar Practice Resource Institute (PRI). The original article can be viewed here.