Courts recognize that the exact moment when the duty to preserve documents arises can be vague. Now, subsequent claims of work product immunity can impact when the duty to preserve arose and affect the potential for spoliation sanctions. Employers should be aware of this risk when evaluating when to issue a litigation hold notice.
The District Court in New Jersey recently held that the duty to preserve documents corresponded with a party’s claim of work product immunity. In Sanofi-Aventis Deutschland GmbH v. Glenmark Pharms., Inc., 2010 U.S. Dist. LEXIS 65323 (D.N.J. July 1, 2010), the District Court held that the duty to preserve and monitor corresponded with the earliest date by which a party claimed work product immunity because at that time materials were prepared in anticipation of litigation. Further, as a result of the defendants’ systematic document destruction practices, the District Court granted a sanctions motion for spoliation of evidence. Specifically, the Court ordered that an adverse inference could be drawn for documents destroyed during the period between the date of the claimed work product immunity and the issuance of the litigation hold letter (e.g., the date that defendant’s alleged the duty was triggered).
Even though this case involved patents, the implications are clear: carefully consider when the duty to preserve is triggered and do not delay in getting litigation hold notices out or instituting corporate document retention policies. Otherwise, documents arguably subject to work product immunity might not be protectable and the assertion of the doctrine could result in a spoliation sanction.