Litiges: Qu'est-ce que le défendeur connaît et quand l'a-t-il su?

Categorie: Blogue de l'Équipe Légale

L'un des moins précis mais, souvent, les considérations les plus importantes associées à une rétention des données, c'est quand la routine des données politiques de conservation et de destruction sont remplacées par une obligation légale de conserver les preuves potentielles.

One of the least precise but, often, the most important considerations associated with data retention is when routine data retention and destruction policies are superseded by a legal obligation to preserve potential evidence. 

This, quite obviously, pre-dates service of legal proceedings and we now find that the courts are setting forth guidelines to be considered in instances where data custodians are aware of a dispute. 

The general rule has been established as one of “reasonable anticipation” of litigation. Silvestri v. GMC, 271 F 3d 583, 591 (4^th Cir 2001): Pension Committee of the Univ of Montreal Pension Plan v Bank of America Securities LLC 685 F.Supp 2d 456, 466 (SDNY).

It is important however to note that this standard is not subjective as in, did this Defendant reasonably foresee litigation, but is rather objective and the test will be whether a reasonable party in the same factual context would have reasonably foreseen that litigation would develop. Micron Tech Inc v. Rambus Inc 09-1263, 2011 WL 1815975 (Fed. Cir May 13, 2011). 

The proper application of this rule is of vital importance since this forms the basis of the legal obligation to suspend all routine policies concerning retention and to preserve all data that might conceivably be deemed relevant to the dispute by a competent tribunal. 

What is less clear however is what a court will consider in determining what the conclusions of a reasonable party would be. 

In the organizational context, the prevailing view is that there must be a reasonable anticipation of litigation by more than one or two employees in order for the duty to preserve to be engaged Zubulake v. UBS Warburg LLC F.R.D. 212, 217 (SDNY 2003) 

Similarly in Toussie v County of Suffolk 01-6716,2007 U.S>Dist. LEXIS 93988 (E.D.N.Y. Dec 21 2007), the court held that there was no duty to preserve given that “a handful” of employees expected the proceedings and that no evidence had been made that any substantial number of “key personnel” anticipated the litigation.

 That litigation may be on the way must be more than a “vague” statement and the simple existence of a dispute will not constitute reasonable anticipation Goodman v. Praxair services 632 F.Supp 2d 494.510 ( D. Md 2009). 

In light of this, a letter advising of plaintiff’s trade mark rights and that its purpose was to determine if litigation could be “avoided” was deemed not to be sufficient to trigger the duty to preserve Cache La Pourdre Feeds LLC v. Land O lakes Farmland Feed LLC 244 F.R.D. 614, 622 (D.Colo 2007). 

The current situation appears to be that a number of factors must be taken into account in determining if one is in the presence of a reasonable anticipation of litigation thereby triggering litigation hold. This involves, the clarity of the threat as well as who in the receiving party’s organization is aware of both the threat and the context in which it is made. 

Certainly, organizations would be well advised to have in place fixed policies concerning intra-organizational communication and evaluation of letters from attorneys or communications in which some threat, even a vague or opaque one of legal action may be contained. 

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