important guidelines to follow

By Vincent Syracuse, Paul Sarkozi, George du Pont, Jaclyn GrodinNovember 20, 2012

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This is one of a series of six articles for InsideCounsel.com. The next article will discuss the first
steps to take when you receive a Rule 45 subpoena and how you can work to avoid costs while
complying with your obligations.

As general counsel, you may receive a request to preserve evidence in a litigation in which your
employer is not even a party. These requests can appear on your desk or in your inbox in a
variety of forms. You may be served with a nonparty subpoena under Rule 45 of the Federal
Rules of Civil Procedure (or a corresponding state rule), which imposes a legal obligation on the
nonparty to take affirmative steps to preserve information relevant to the subpoena, including
electronically stored information, at least through the period of time it takes to comply with the
subpoena and resolve any issues before the court. But what should a GC do, if anything, when
faced with a letter or phone call from a party, or a party’s attorney, requesting a nonparty’s
preservation of certain evidence? As a nonparty, what is your obligation to preserve absent a
subpoena subject to Rule 45’s requirements?

Case law is sparse regarding a nonparty’s obligations upon receipt of a preservation demand in a
form other than a subpoena. The short answer is that a nonparty’s obligations vary. Where
nonparties and parties have contractual obligations mandating cooperation or preservation of
evidence, or some other special circumstance giving rise to a duty to preserve, a nonparty’s duty
can trigger solely upon notification by the party involved that a lawsuit exists or may exist in the
near future. Such nonparty obligations may result from a statute or a formal agreement by the
nonparty in possession of specific relevant evidence to preserve upon request by a party, even if
the request is unaccompanied by a subpoena. For example, if a car rental company received a
request to preserve from a plaintiff involved in an accident in a car rented from the company, and
the company agreed to preserve the vehicle but did not maintain the vehicle in the same
condition that existed after the accident, the company could be liable for negligent spoliation.

The few cases considering the issue have held that “[s]ending preservation letters … is distinct
from serving preservation subpoenas because the latter imposes a legal obligation on third parties
to take reasonable steps to preserve relevant documents,” as well as that an “informal
conversation asking non-parties to preserve certain documents,” lacks the force of a subpoena
and therefore impose no independent legal obligation for the nonparty to preserve evidence. As
one court noted in explaining its rationale for lifting the stay of discovery in a securities case to
allow service of a nonparty subpoena: “The only thing that is certain is that without preservation
subpoenas, the third party corporations in possession of potentially relevant information are free
to destroy that information.” So what does it mean for a nonparty who receives a call, email or
simple letter on the party’s stationery requesting, or demanding, that the nonparty preserve
evidence? As GC, what should you do to ensure you protect your company from becoming
entangled in litigation even if you may not have any legal obligation to do anything? 
The fact that a preservation letter, unaccompanied by a subpoena, may not technically trigger any
preservation duty for a nonparty should not end the inquiry for general counsel because any time
a nonparty “reasonably anticipates litigation”—even if has not received a preservation letter—it
still faces preservation duties.

Accordingly, if a preservation request includes information leading a nonparty to reasonably

believe and anticipate it may eventually become a party to the suit, or another lawsuit based on
similar facts, a duty to preserve relevant evidence should be presumed, routine document
destruction suspended and the appropriate preservation protocol initiated. Moreover, a technical
nonparty affiliated with a party to a lawsuit should nonetheless evaluate the difficulty of issuing
an internal litigation hold and immediately consult with the related named party to determine
whether it may possess discoverable evidence which the party would be obligated to produce so
as to avoid the potential for future spoliation claims or adverse inference instructions.

Even if your company has no relation to any party in the case, and therefore has no likely stake
in the outcome of the litigation, it would be prudent to reach out to the party requesting
preservation to determine whether a Rule 45 subpoena is forthcoming, and if so, when. By doing
so, you will likely get a more comprehensive idea of what your future obligations may be in the
event a subpoena is on the horizon, and preemptively work with the party to focus and limit the
scope of the subpoena, as well as take precautionary preservation steps to the extent those steps
can be undertaken with minimal burden or expense to the company. 

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