Page 2 - E-Discovery

S2 | MONDAY, OCTOBER 5, 2015 | E-Discovery
| NYLJ.COM

ally or negligently destroys documents

after receiving a preservation request from
a party to a litigation are not clear. In recent
years, courts throughout the country have
grappled with this very issue. In 1984, a Cali-
fornia intermediate appellate court was the
first court to recognize a separate cause of
action for spoliation against a nonparty in a
case where “the destruction of the evidence
made it impossible for the plaintiff to recover

any damages in the underlying suit.”5 Follow-
ing that decision, several other jurisdictions
recognized various spoliation torts6 but the
majority of courts, including New York, have
declined to recognize a cause of action for
third-party spoilation.7
In MetLife Auto & Home v. Joe Basil Chev-
rolet8 the New York Court of Appeals did not

allow a negligent third-party claim to proceed.
In that case, a home insured by MetLife sus-
tained damage from a fire started in a vehicle
Preservation owned by the defendant Joe Basil Chevrolet.9
Evidence Royal Insurance Company (defendant’s insur-
er) took possession of the vehicle after the
fire. Even though Royal voluntarily agreed in
a phone conversation to preserve the vehicle
Failures Nonparties: for inspection by MetLife and others, Royal
of
later allowed the car to be sent to a salvage
yard and scrapped. MetLife then sued Royal
for negligent and reckless spoliation of evi-
Is There Any Recourse?
dence, which it claimed irrevocably impaired
its ability to successfully pursue a claim.10
CK
The court in MetLife concluded that the STO
potential burdens on third parties weighed BIG
against recognizing an independent claim
for negligent third-party spoliation, stating:

In this case it is clear that Royal had no nonparties, are well-served to consider the documents from a nonparty to the action.”3
duty to preserve the vehicle ... . More- BY DANA L. POST
case law governing nonparty preservation.
As a consequence, in circumstances where
over, no relationship existed between AND SAMUEL J. RUBIN
All litigants are required to “retain all rel- a party perceives a legal “right” (often found
MetLife and Royal that would give rise evant documents ... in existence at the time in contractual agreements between the party
to such a duty. Additionally, MetLife It is well-established that parties to a litiga- the duty to preserve attaches” and the “scope and the third party) or the “practical ability”
made no effort to preserve the evidence tion have duties to preserve documents of the duty extends to ‘any documents or (often found in the relationship between the
by court order or written agreement. when litigation is reasonably anticipated. tangible things (as defined by Rule 34(a)) party and the third party), that party is likely

Although MetLife verbally requested Attorneys should too be aware that nonpar- made by individuals ‘likely to have discov- to issue preservation or hold notices to third
the preservation of the vehicle, it never ties to a litigation may be obligated to pre- erable information that the disclosing party parties possessing documents relevant to the
placed that request in writing or volun- serve documents in certain circumstances. may use to support its claims or defenses.’”1 litigation.4 Parties may also identify third par-
teered to cover the costs associated Indeed, while the case law governing nonparty The “concept of ‘control’” under Rule 34 has ties who possess documents the party would
with preservation. The burden of forc- preservation is still evolving and varies widely been “construed broadly” and “does not like preserved even though those documents
ing a party to preserve when it has no across states and circuits, nonparties may require that the party have legal ownership are not in the party’s possession, custody or
notice of an impending lawsuit, and the
expose themselves to liability for failure to or actual physical possession of the docu- control. In those cases, it is common for a
preserve evidence that is relevant to a litiga- ments at issue.”2 Accordingly, the law imposes party to either make a written request to the
tion. As nonparty discovery is a regular con- on parties a duty to preserve potentially rel- nonparty to preserve documents or obtain

DANA POST is special counsel, e-discovery and data sideration in virtually all complex litigation, evant third-party evidence within that parties’ a preservation order.
management, and SAMUEL RUBIN is a senior associ- practitioners producing or seeking production “control” determined by “when it has ‘the Notwithstanding the foregoing, the legal
ate, at Freshfields Bruckhaus Deringer US, in New York.
from nonparties, as well as those representing
right, authority, or practical ability to obtain
ramifications for a nonparty who intention-

E-Discovery
Inside

S
S6 Proportionality:
S8 Practical Considerations S4
New Strategies to Protect S
The (Not So) New Kid In Using Predictive Coding Privileged Documents From
Kris Fischer, Editor-In-Chief On the Block
Inadvertent Disclosure
BY GARETH EVANS
Angela Turturro, Sections Editor BY SAMANTHA V. ETTARI
AND JENNIFER REARDEN
BY MARGARET A. DALE
Rafal Pytel, Design
AND JOSHUA M. KAY
S

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