Hedges on an Innovative Response to Burdensome Pretrial Preservation Obligations

Hedges on an Innovative Response to Burdensome Pretrial Preservation Obligations


In The State of Texas v. The City of Frisco, 2008 U.S. Dist. LEXIS 24353 (E.D. Tex. Mar. 27, 2008), the Texas Department of Transportation (TxDOT), faced with the burden of determining and clarifying its pretrial preservation obligations, sought judicial intervention, requesting a declaratory judgment to help define its obligations. Ronald J. Hedges, counsel at the New York office of Nixon Peabody LLP and former U.S. Magistrate Judge, analyzes this innovative approach and discusses how a party can deal with burdensome pretrial preservation requirements. He writes:
 
     A party subject to a pretrial preservation obligation must, unfortunately, fend for itself absent party agreement. TxDOT acted appropriately in requesting a meet and confer with City of Frisco, as an agreement with the opposing party remains the most effective means of establishing explicit guidelines for the preservation of documents and insulating oneself from potential discovery sanctions for spoliation.
 
     Even if the opposing party does not comply, requesting a meet and confer is an important step for a party trying to establish good faith preservation. The City of Frisco court noted that, while they do not specifically address pre-suit litigation hold requests, the Rules of Civil Procedure 13 contemplate that the parties will act in good faith in the preservation and production of documents, and encouraged the parties to handle the preservation of documents in response to their respective litigation holds in such good faith. The party requesting the meet and confer is in a better position to decide for themselves what documents they consider relevant, and can later point to their opponents failure to take advantage of the opportunity to participate in the preservation process should any documents be lost.
 
     Though there is always some uncertainty when determining what documents will be relevant to a claim that is not yet filed, one thing is clear in the aftermath of City of Frisco: Until the substantive claim is filed, judges are not likely to waste judicial resources and specify what constitutes good faith in the pretrial preservation context. Parties subject to a preservation obligation, therefore, should not waste their own resources seeking judicial intervention. Parties should, instead, rely on negotiation with their opponent to establish the boundaries of their preservation obligation and leverage the fact that, outside of any guidance from the opponent, they will determine for themselves what documents will be necessary in proving the opponent’s claim.
 
(footnotes omitted)