[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer. On the somewhat unique facts presented, the Court held that plaintiff’s consulting an attorney to find out her rights is not “necessarily” the same thing as contemplating or anticipating litigation for purposes of triggering the common-law duty to preserve.
Defendants served discovery requests asking that plaintiff admit that she contemplated and anticipated litigation against her employer on December 12, 2022. That, obviously, focuses on when plaintiff’s duty to preserve was triggered.
Plaintiff Ms. Li responded:
Admit that by this date Plaintiff was looking for a lawyer with whom to consult to find out her legal rights because Defendants had not remediated the discrimination and retaliation and instead it was escalating. Deny that as of this date Plaintiff was contemplating filing a lawsuit against Defendants.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.).
The parties disagreed about the sufficiency of the responses. Defendants called them evasive and incomplete. Ms. Li “says that she is a first generation immigrant who was entirely unfamiliar with her rights and that she sought legal consultation in an effort to understand her rights. Plaintiff claims she did not actually contemplate or anticipate litigation until March 10, 2023, the day after she was terminated.”
If consultation with a lawyer triggered the duty, the duty arose on December 12, 2022. If not, it arose on March 10, 2023.
The Li court wrote:
Defendants do not cite any legal authority for the proposition that looking for a lawyer to consult with to find out what one’s rights are is necessarily the same thing as contemplating or anticipating litigation. Further, as a matter of common sense, some people might find the idea of suing their current employer completely unpalatable. The Court can’t say that it is unrealistic for Plaintiff to claim that she did not contemplate or anticipate litigation until the day after her termination. Accordingly, the Court is unable to conclude that these RFA responses are evasive and DENIES Defendants’ motion on this issue. [Emphasis added].
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.).
The Court can’t say that it is unrealistic for Plaintiff to claim that she did not contemplate or anticipate litigation until the day after her termination.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025)(Hixson, J.).
“Trigger” – the date when the common-law duty to preserve arises – is an important fact, because “[a]bsent some countervailing factor, there is no general duty to preserve documents, things, or information, whether electronically stored or otherwise.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521 (D. Md. 2010), aff’d in part, modified in part, 2010 WL 11747756 (D. Md. Nov. 1, 2010), citing Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton, “Proportionality in the Post–Hoc Analysis of Pre–Litigation Preservation Decisions,” 37 U. Balt. L.Rev. 381, 388 (2008).
The duty to preserve arises when litigation is reasonably anticipated. Williams v. Dolgencorp, LLC, 2025 WL 403795, at *5 (D. Md. Feb. 5, 2025).
The standard – reasonableness – is objective. Safelite Grp., Inc. v. Lockridge, 2024 WL 4343038, at *4 (S.D. Oh. Sept. 30, 2024). In short:
The standard is an objective one, “asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.”
Safelite Grp., Inc. v. Lockridge, 2024 WL 4343038, at *4 (S.D. Oh. Sept. 30, 2024).
The Sedona Conference, “Commentary on Legal Holds, Second Ed., The Trigger & The Process,” 20 Sedona Conf. J. 341, 354 (2019)(emphasis added).
Of course, the mere existence of a dispute does not necessarily trigger the duty. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 510 (D. Md. 2009).
However, when a lawyer is retained for probable litigation, the lawyer has a duty to inform the client of the duty to preserve. Thompson v. U.S. Dep’t of Hous. & Urb. Dev., 219 F.R.D. 93, 100 (D. Md. 2003).
Marking documents as attorney “work product” may indicate triggering. I have suggested that it is at least a pertinent factor in that analysis. Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024).
And, there are indications that marking documents as attorney-client privileged may be a factor in trigger analysis. For example, in Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)(other history omitted), “certain UBS employees titled e-mails pertaining to Zubulake ‘UBS Attorney Client Privilege’ starting in April 2001, notwithstanding the fact that no attorney was copied on the e-mail….” That was a factor in determining when the duty was triggered.
Citing an intermediate Maryland decision, I have written that: “When a potential plaintiff seeks counsel, it is likely that the duty to preserve is triggered. An exception may apply where counsel advises against litigation.” M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts,” (Md. State Bar Assn. 2020), 258 n. 39.
In my opinion, in Li the Court applied, at least partially, a subjective factor. Ms. Li “was entirely unfamiliar with her rights and that she sought legal consultation in an effort to understand her rights.” While Sedona correctly states that the test is “whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation,” I have some questions about the Li Court’s conclusion. What facts led Ms. Li to consult counsel at that time? It must have been more than mere academic curiosity about worker’s rights to cause her action. We do not know what was said to the lawyer (privilege?) or what the lawyer said to Ms. Li (privilege?). What if the lawyer said “you’ve got a great case, but you don’t have damages until you’re terminated?” What if the lawyer simply said, “even though I have not been retained, I think you have a duty to preserve?”
What if the lawyer said “you’ve got a great case, but you don’t have damages until you’re terminated?” What if the lawyer simply said, “even though I have not been retained, I think you have a duty to preserve?”
Michael Berman, E-Discovery LLC.
There is no single formula to decide when the duty to preserve is triggered. Clearly, preservation demands and commencement of a lawsuit suffice. The tougher question is what else is sufficient? And, all of this occurs in a “free for all” zone where there is no umpire. See Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout(Jun. 4, 2022). “[T]he duty to preserve potentially responsive information often arises in a ‘free for all’ zone before litigation is commenced. In that situation, there is no umpire to call balls and strikes.” Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands (Jan. 29, 2021).
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