Litigation can bring a lot of headaches for a business and the discovery process can certainly be one of them. The vast majority of the discovery process is dealing with a party’s electronically stored information, or “ESI.” Due to the times we live in, the amount of relevant electronic documents to a dispute can be staggering. Emails, photos, instant messages, text messages, and the list goes on and on. Businesses routinely delete these documents in the course of business for a multitude of reasons, such as privacy and storage space. However, if a business was required to preserve these documents, a court can impose monetary and other sanctions. Therefore, one of the biggest and commonly litigated discovery issues is determining exactly when that business had a duty to preserve the sought after documents.
The Florida Supreme Court has answered the question, but that answer does not give much guidance. To quote the Court, a party has a duty to preserve ESI when there is a “reasonable anticipation of litigation.” League of Women Voters of Fla. V. Detzner, 172 So. 3d 363 (Fla. 2015). Unfortunately for us, the Court did not give much guidance on when litigation becomes reasonably anticipated. While Detzner gave us the standard, the logical question now becomes “when is it reasonable to anticipate litigation?”
Detzner dealt with the 2012 Florida Legislature’s redistricting process and potential gerrymandering. Before the suit was filed, the legislature deleted emails and other documents relating to the later filed gerrymandering suit. There had previously been litigation regarding whether the emails fell under the legislative privilege doctrine, and the legislature had reason to believe the issues at bar would be litigated. The Supreme Court agreed with the trial court and concluded that the emails and other documents should have been preserved since litigation was reasonably anticipated due to the past disputes and forecast of future disputes.
It is obviously reasonable to assume litigation is reasonably anticipated when the matter makes its way into formal proceedings, for example when a lawsuit is filed or a governmental agency gives notice of an investigation. But what about those grey areas that exist before the dispute is formalized? One circuit court, Silkworth v. City of Boca Raton, 2016 Fla. Cir. LEXIS 4645, found that in the injury context, litigation can be reasonably foreseeable the moment of injury when the injury was easily observable by the naked eye. In Silkworth, a person injured in a car accident had developed paraplegia after being treated at a hospital. Through their normal video retention policies, the hospital deleted video which allegedly showed the plaintiff walking into the hospital. However, the court recognized the facts of Silkworth were relatively unique.
The duty to preserve arises from statutes, contracts and discovery related correspondence. For instance, a party will have a duty to preserve documents if an opposing party specifically requests the evidence is preserved. Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012). For instance, a duty to preserve can arise when a party emails another party to outline their position and belief that certain conduct breached a contract. Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317 (S.D. Fla. 2010). Furthermore, litigation is reasonably anticipated when an administrative agency sends a letter informing a business that they are under investigation. United States EEOC v. GMRI, Inc., No. 15-20561-CIV, 2017 U.S. Dist. LEXIS 181011, at *80 (S.D. Fla. Nov. 1, 2017). Both GMRL and Managed Care looked to whether the emails made a specific type of litigation reasonably anticipated rather than just litigation generally being anticipated. Specifically, Managed Care held that litigation was not reasonably anticipated until the plaintiff’s email alleged specific provisions of a contract had been breached, while GMRI found litigation was reasonable when specific restaurants were named in a notice of investigation.
The case law cited above demonstrates that while the general standard is to preserve documents when litigation is reasonably anticipated, whether or not litigation should have been reasonably anticipated is a fact specific inquiry. Normally, there needs to be some sort of documented correspondence from the potential plaintiff that puts the business on notice that the litigation is reasonably anticipated. This correspondence also needs to address specific claims, not general allegations. Someone merely emailing a business that there is an issue may not independently create a duty to preserve. However, an email informing the business that their conduct likely breached a contract provision, for example, likely makes litigation reasonable anticipated and triggers a business’ duty to preserve the ESI related to that contract. When in doubt, businesses should react conservatively to any threatened litigation and ensure that document destruction policies are suspended and that evidence is preserved. As for further clarification of when a business “reasonably anticipates litigation,” your guess is as good as mine.