Electronic Discovery Law
Court Enters Preservation Order and Requires Electronic Records be Produced in the Format in which They are Stored
In this decision, the court issued a Document Preservation Order in light of defense counsel’s reports that several boxes of documents had been inadvertently destroyed during the pendency of the case. The court had ordered the parties to brief the issue of spoliation, and to file a joint status report proposing a document preservation order and a revised discovery schedule.
The court determined that a preservation order was appropriate, using the standard articulated in Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004). There, the court held that it had the power to preserve evidence and issue orders in furtherance thereof under its inherent authority. It rejected the notion that the standards for the issuance of a preliminary injunction (including showing a likelihood of success on the merits) must be met before a preservation order may issue. Instead, the court found that one seeking a preservation order must show (1) that it is necessary, and (2) that it is not unduly burdensome. Id. at 138. To meet the first prong, “the proponent ordinarily must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed – a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past or has inadequate retention procedures in place.” Id. As to the latter prong, “the proponent must show that the particular steps to be adopted will be effective, but not overbroad.”
The court found that both prongs of the test were “fully satisfied.” Accordingly, it ordered that, during the pendency of the litigation or until further order of the court, “defendant, its agencies, and employees must take reasonable steps to preserve every document, data or tangible thing (collectively ‘documents’) in its possession, custody or control, containing information that is relevant to, or may reasonably lead to the discovery of information relevant to, the subject matter involved in the pending litigation.” The court reminded plaintiff that it likewise had a duty to preserve relevant evidence.
The court identified various categories of relevant documents, and included documents regarding defendant’s document retention policies and practices:
- Documents evidencing destruction of records pertaining to any of the specifically identified records
- Document retention and destruction policies, including policies pertaining to litigation; for the period 1997 to the present
- Documents evidencing “communications to preserve potentially relevant evidence concerning any claims made by United Medical
Further, the court described the procedure to be used for defendant’s document production. It ordered each of the affected facilities to provide defense counsel with a description of documents it currently possessed with respect to each category described. In the event the facility had no documents, it was required to “describe, in detail, the efforts made to locate such documents and whether it believes such documents once existed but were destroyed, and how and when they were destroyed. The court set a deadline for submission of the document descriptions to defense counsel, and ordered defense counsel to promptly forward the list to plaintiff’s counsel.
Next, the court directed plaintiff to designate the records (or portions of records) described in the summary description that it wished to review and allowed plaintiff an approximate two-month timeframe within which to inspect a designated record upon receiving notification from defendant that such record was available for inspection. After such inspection, plaintiff would then identify documents for production. The court instructed defendant to “provide to plaintiff copies or electronic images of the documents” within such time as the parties agreed, and that “[c]opies of electronic records shall be produced in the format in which they are stored by the agency or military base.”
The court specifically defined “preservation” to mean the following:
"Preservation" is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery under RCFC 26, 34, 45, and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.
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