A Shot Across the Bows

How many document preservation or litigation hold letters have you written, received, or even seen? I have been working in eDiscovery for about sixteen years and I have drafted or seen maybe a dozen. I would venture to guess that even seasoned litigators probably don’t see or write many. Their requirement often arises before the commencement of formal litigation and serves to give “reasonable anticipation of litigation” if such is otherwise lacking. A lot has been written by courts and commentators alike about what a litigation hold letter must say in order to convey that legal action has become, or should be, reasonably anticipated. With this in mind, I would like to take a look at the current war of words between the New York Times and the National Football League. Last month, the NY Times dove into the public discussion about concussions in football and alleging that the NFL skewed data in its favor and had ties to the tobacco industry. A few days later, Politico followed up with an article of its own about the NFL’s reaction to the Times’s front page piece. The interesting part, from an eDiscovery standpoint, is that Politico also published a letter purportedly from the NFL’s attorneys at Paul, Weiss, et al. demanding a retraction and a “request that the Times’s reporters and editors who worked on this story preserve their notes, correspondence, emails, recordings and work papers and all other electronic and hard copy documents generated or received in connection with their work.” The six-page letter contains the words “false”, “falsely”, or “falsity” nineteen times and used the words “defamed” or “defamatory” nine times (including using them in conjunction as “false and defamatory” seven times). Twice, the letter states that the NFL “broadly” reserves its rights and remedies. In its most pointed statement, the letter claims that the Times “recklessly disregarded the truth and defamed the NFL, even under the public-figure Sullivan test” (which established an “actual malice” standard for defamation or libel of public figures). The letter does not specifically state an intent by the NFL to pursue legal action against the Times.

My question is this: If you were General Counsel for the Times, would you perceive the letter from the NFL as triggering reasonable anticipation of litigation? A preservation letter is a tricky thing. It must be specific enough to create reasonable anticipation of litigation and trigger a duty to preserve. Conversely, a generally threatening letter may not, in-an-of-itself, trigger a duty. Further, if the letter creates reasonable anticipation and triggers the duty to preserve on the part of the recipient, the same must be true for the sender. In fact, if the letter triggers a duty for the Times, then the NFL’s duty certainly began earlier. Given that it may be in a position to prove the falsity of the Times’s claims (or the truth of its own), it strikes me that the NFL likely has a lot more to preserve than the Times. The Sedona Conference’s Commentary on Legal Holds highlights this ambiguity by stating, “The degree to which anticipated litigation must be clear and certain is debatable” and contrasts Goodman v. Praxair Services (in which plaintiff sent a letter stating that he had consulted an attorney and thus providing reasonable notice of potential litigation) and Cache La Poudre Feeds v. Land O’Lakes (in which plaintiffs multiple letters to defendant did not give sufficient notice that litigation was likely). I’m not saying that the Times can affirmatively destroy the documents in question, but has a duty to preserve attached? Given that the new FRCP seems to set a higher burden for spoliation sanctions (as discussed in last week’s post) would you issue a litigation hold at the Times?