We know there is no general duty to preserve evidence before litigation is reasonably anticipated, so the trick is to determine what facts the court will consider when determining when that duty attaches. For an individual or company that initiates litigation, the obligation to preserve relevant evidence may be triggered before a lawsuit is commenced. Triggering events may include seeking advice of counsel, sending a cease and desist letter, or taking specific steps to initiate specific legal action. See, e.g., Hynix Semiconductor Inc. v. Rambus Inc. (sanctioning company that destroyed documents while strategically planning to bring a specific lawsuit).
As for a potential defendant, the receipt of a prelitigation preservation request, a request to inspect, a demand letter, a cease and desist letter, a cure notice, or even a discussion with an opposing party or its counsel may trigger a company’s obligation to preserve information relevant to potential litigation. Likewise, if a company learns an employee or former employee is seriously contemplating a lawsuit, if an event or other circumstance would reasonably put an organization on notice that a lawsuit is likely to be filed, or if a company has a history of litigation arising out of similar events or circumstances, the duty to preserve may be triggered. These events or circumstances must be examined in the context of an organization’s history or experience with particular types of litigation. For instance, in Stevenson v. Union Pacific R.R. Co., the court upheld sanctions against a railroad because it destroyed voice tapes immediately after an accident despite knowing that voice tapes had been used in earlier lawsuits to its advantage. That is, the railroad’s experience in prior litigation should have caused it to conclude that the accident would lead to litigation where the voice tapes would be relevant.