Disclosure of Document Preservation Efforts – What’s Required?

A recent federal court decision sheds light on what may be required for disclosure of document preservation efforts. In Doe LS 340 v. Uber Technologies, Inc., --- F. Supp. 3d ----, 2024 WL 107929 (N.D. Cal. Jan. 29, 2024), the court looked to Rule 26 and local practice for the initial disclosure of information regarding efforts to preserve documents and ESI sources.

Overview of the Litigation and Discovery Dispute

The plaintiffs in a multidistrict litigation (MDL) claimed that Uber failed to put in place appropriate safety measures to protect passengers and consequently suffered sexual assault or harassment by drivers. Id. at *1. The federal court issued a pretrial order concerning document preservation as an “interim measure pending the parties’ proposal of a more tailored order concerning the preservation of relevant information” and a way to “ensure the preservation of all documents and ESI that may be discoverable in relation to any of the issues in the litigation.” Id. at *2.

Thereafter, the parties discussed the scope of Uber’s preservation efforts, which included the number of employees who were subject to a litigation hold. However, Uber refused to disclose the names of the employees who were subject to a litigation hold, including the dates when the holds were issued to each employee.

Motion to Compel Regarding Uber’s Document Preservation Efforts

The plaintiffs moved to compel Uber to produce information regarding its issuance of litigation holds, the names, jobs titles and dates of employment of the recipients of the hold notices, the dates for when the holds were issued, and what litigation or claim the holds relate to, and the sources of ESI that Uber preserved, when it preserved those ESI sources, when such ESI sources were used, what those ESI sources were used for, the general information each of those ESI sources contained and which employees used or had access to these ESI sources. The plaintiffs also asked the court to require Uber to suspend its document destruction policies companywide so that there was adequate time for plaintiffs to see if any relevant ESI had been destroyed.

The Court’s Order

Duty to Preserve

The court explained that “[a]s soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” The court also stated that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” The duty to preserve evidence “includes an obligation to identify, locate and maintain information that is relevant to specific, predictable and identifiable litigation.” Id. at *3. However, the court noted that organizations “are not generally required to preserve every email or electronic document” because “[t]o require such broad preservation would cripple organizations that almost always are involved in litigation and make discovery even more costly and time-consuming.” Id.

Disclosure of Preservation Efforts

The plaintiffs argued that Uber was required to provide facts concerning its litigation holds such as the names, job titles and dates of employment of the hold recipients, the dates of when the holds were issued, and what litigation or claim the holds relate to. In response, Uber argued that the Northern District of California Rule 26(f) Checklist required only “the names and/or general job titles or descriptions of custodians for whom ESI will be preserved” and that it already provided a list of job titles (with no names) for the approximately 15,700 past and current employees subject to a legal hold. Id. Uber further argued that the detail regarding its litigation holds sought by the plaintiffs was “plainly privileged,” because it touched on matters contained within the litigation holds themselves.

Need to Identify Basic Facts Regarding Litigation Hold

The court held that Uber needed to disclose to the plaintiffs the basic information regarding its litigation holds and explained that “the basic details surrounding the litigation hold” are not protected by the attorney-client privilege or the work product doctrine. Id. at *4. The court made clear that plaintiffs were not “entitled to probe into what exactly” Uber’s employees were told by its attorneys through the litigation holds, but the plaintiffs were “certainly entitled to know” what Uber’s employees are doing “with respect to collecting and preserving ESI.”

Simply put, the court found that the plaintiffs were entitled to inquire about “the facts of what Uber’s document retention and collection policies are, including the kinds and categories of ESI preserved, rather than how the litigation holds were worded or how they describe the legal issues in the action.”

Therefore, the court ordered Uber to disclose all of the following:

1. the dates that the litigation holds were issued
2. the dates of preserved ESI
3. the names, job titles and dates of employment of the recipients of the hold notices
4. whether the litigation hold relates to a case or complaint involving allegations of sexual assault or sexual harassment. at *5

Need to Identify ESI Sources That Were Preserved and Other Related Details

The court also found that “[c]ourts routinely hold that parties are ‘entitled to know what kinds and categories of ESI’ a party has collected and preserved and what specific actions were undertaken to that end.” Id. at *4. As such, the court ordered Uber to specifically identify what sources of ESI it preserved, when each source was preserved, when each ESI source was used, what each source was used for and the general types of information contained in each source. Id. The court did not order Uber to provide information about which employees used or had access to each ESI source explaining that this would be burdensome given the significant number of current and former employees at Uber. However, the court stated that the plaintiffs could ask about this in a deposition. Id.

Finally, the court declined to order Uber to suspend its automatic document destruction policies companywide because such a request was “exceedingly broad and generally disfavored” and the fact that Uber had already “suspended automatic deletion of emails and electronic data for thousands of employee custodians.” Id. at *5.

Key Takeaways:

• Companies and individuals need to take seriously their duty to preserve obligations as soon as they reasonably anticipate litigation and confer with counsel regarding strategy for preservation efforts and implementing a reasonable and defensible preservation protocol.
• Although litigation hold letters and the contents of a hold letter are typically protected by the attorney-client privilege and work product, litigants need to be aware of the rules and local practice surrounding disclosure of preservation efforts.
• Litigants should confer with counsel regarding its preservation efforts and be prepared to disclose certain facts surrounding those efforts such as the names and job titles of the persons notified of the litigation hold and the dates of such notifications, the sources of ESI preserved, when each ESI source was preserved, when each ESI source was used, what each ESI source was used for and the general types of information housed/contained in each source.