[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

A recent decision clarified the relationship between a requesting and a preserving entity and ordered “discovery on discovery” a/k/a satellite discovery or culpability discovery. The court wrote:

• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.”
• “Rule 37 requires the party from whom the information is sought to ensure they are taking reasonable steps to preserve evidence. Fed. R. Civ. P. 37(e). The Rule does not require that the requesting party issue a document preservation letter identifying all types of ESI that it might seek in the future. Instead, that burden rests with the preserving party.”
• “[F]ailure to preserve some types of ESI while destroying others is a reasonable basis to infer that the destroying party acted with bad faith.”
• “To address these issues at this stage, the Court preliminarily directs counsel for Defendants to confirm in a written filing with the Court that they have issued a litigation hold.”
• “Further, the Court directs Defendants to confirm in a written filing with the Court the dates of preserved ESI, including but not limited to the sources of ESI 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.”
• “If any ESI has been destroyed, which appears to have occurred with Benton, the individual such as Benton or individuals with personal knowledge must file an affidavit with the Court indicating whether a litigation hold was received, what occurred with the ESI, what efforts have been undertaken to restore the ESI, and what efforts have been undertaken to search other available ESI in the custody or control of the individual. If the ESI cannot be restored or replaced, the Court may then determine what, if any, sanction is warranted.”

Jones Eagle LLC v. Ward, 2026 WL 25290 (E.D. Ark. Jan. 30, 2026)(emphasis added).

Jones Eagle was a lengthy and complex decision addressing many issues.  Many of them were interesting and important. For example, one dealt with the relationship between “sunshine laws” and civil discovery:

That Jones Eagle utilized the Arkansas Freedom of Information Act to obtain documents previously also does not serve as a shield for the Non-Parties’ failure to respond properly under the Federal Rules of Civil Procedure to a Rule 45 subpoena duces tecum. It is widely understood that the Arkansas Freedom of Information Act (“FOIA”), Arkansas Code Annotated § 25-19-101 et seq., provides a floor, not a ceiling, to discovery in a civil case.

Jones Eagle LLC v. Ward, 2026 WL 25290 (E.D. Ark. Jan. 30, 2026).

Turning to the issue covered in this blog, the court’s evaluation of the legal hold: “Defendants admit they failed to preserve probative materials they have not produced.”  Jones Eagle (plaintiff) obtained many of the missing materials using third-party subpoenas. Id. at *14.  As a result, “[t]he Court, like Jones Eagle, has concerns based on this admission.”

Alexandra Benton, Esq., had a one-year auto-deletion setting on her cell phone. That raised “more concerns for the Court about whether a litigation hold was issued by Defendants’ counsel and whether Defendants and all those bound by the Federal Rules of Civil Procedure are abiding by that request and the requirements of the Federal Rules of Civil Procedure with respect to discovery obligations.”  Id. at *15. Citing DR Distributors, the Jones Eagle court wrote: “Among other things, critically, an adequate hold notice must include a warning to disable autodelete functions.”  Id. at *16.

The Jones Eagle court wrote: “The timing presents a problem for Benton. Benton is a trained lawyer. This action commenced November 13, 2024. The text message communications between Benton and Burnett were exchanged from February 28, 2024, to March 22, 2024. Based on Defendants’ asserted timeline, the text message communications were available for over three months after this action commenced.” Id.

Within that one year auto-deletion period, the court held a status conference, opened discovery, and, issued a scheduling order. The parties met, conferred, and submitted a Joint Rule 26(f) report¹ setting out the scope of discovery. Id. The Report stated:

• “[T]he Parties anticipate discovery of electronic or computer-based media.”
• “The Parties assert they have taken reasonable measures to preserve potentially discoverable data from alteration or destruction.”

Id.  The court wrote: “Benton is the type of person likely to have relevant information in this case. By Defendants’ own admission, she along with Walter Mahone signed Defendants’ responses to discovery requests…. Defendants were required, among other responsibilities, to take reasonable steps to preserve Benton’s text messages.” Id. at *16.

The combination of the Rule 26(f) representations and the facts regarding Ms. Benton’s missing texts led to the court’s “keen interest” and disclosure orders, as described above. 

It has long been settled that a preservation letter is not necessary to trigger the duty to preserve. Golden Oldie #1 – Is a Preservation Letter Necessary to Trigger an Opponent’s Duty to Preserve? (Apr. 16, 2025), discussing Thompson v. HUD, 219 F.R.D. 93 (D. Md. 2003)(Grimm, J.).

However, there are decisions excusing a failure to preserve when a preservation letter is poorly drafted. Perils of a Vague Preservation Letter (Jun. 21,2022), discussing Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021); The Perils of a Misfocused Preservation Letter (Jul. 22, 2021), discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021); and, A Focused Preservation Letter (Mar. 29, 2022), discussing Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative Driven (driven-inc.com) (Jan. 3, 2022).

I have discussed different ways of responding to a preservation letter. Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands (Jan. 29, 2021).

For more information on “discovery on discovery,” please see Guidelines for “Discovery on Discovery” (Aug. 5, 2025); “Discovery on Discovery” Permitted (Sep. 4, 2025); “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025); Hon. Paul W. Grimm (ret.), Michael D. Berman, et al., “Does the Attorney-Client Privilege Protect all Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413 (2008).

Notes

1. For more information, please see “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024); An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025). ↩︎

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.