Archive: April 2, 2008

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Court Declines to Issue Advisory Opinion as to What Actions State Must Take to Properly Preserve Documents for Potential Suit

Court Declines to Issue Advisory Opinion as to What Actions State Must Take to Properly Preserve Documents for Potential Suit

Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008)

In this case, the State of Texas sought a declaratory judgment and the court’s protection from a general litigation hold request, initiated by a letter sent by the City of Frisco.  The letter asked the Texas Department of Transportation to generally preserve all electronic data associated with a particular highway toll project, and referred to potential litigation regarding the environmental evaluation of the toll project.  The State speculated that the City would likely bring suit pursuant to the National Environmental Policy Act and the Administrative Procedures Act; however, at the time the complaint was filed, no claims had been brought.  Thus, the State asked the court to enter a declaratory judgment ruling that the City’s preservation letter "violates the Federal Rules of Civil Procedure and is contrary to rules governing a NEPA/APA claim in federal court."  The request for declaratory relief was the sole count made against the City of Frisco in the complaint.

The City of Frisco moved to dismiss, arguing that the State failed to plead the elements of any viable claim and was essentially asking the court for an advisory opinion concerning what action it must take to properly preserve those documents subject to the litigation hold.  The court agreed, and dismissed the complaint.  The court’s analysis is set out below:

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