Chapter 3 - § 3.2 • DUTY TO PRESERVE DOCUMENTS

• Jurisdiction: Colorado

§ 3.2 • DUTY TO PRESERVE DOCUMENTS

Before documents can be produced, they must be preserved so that they are available in discovery. The obligation to preserve documents typically arises long before counsel begin framing the first requests for production, or the core issues in the case have been well defined. Properly fulfilling a party's preservation obligation is the essential first step in discovery practice as mishandling of this step is a common ground for the imposition of sanctions during litigation.

§ 3.2.1—When Does the Duty to Preserve Arise?

A duty to preserve documents and information may arise under the common law or under statutes and regulations. Counsel should consider whether applicable statutes and regulations impose preservation obligations beyond what is required under the traditional common law standard. See, e.g., F.R.C.P. 37(e) (referring to documents "that should have been preserved in the anticipation or conduct of litigation"); 18 U.S.C. § 1519 (prohibition on destruction or falsification of documents in connection with investigation or administration by federal agencies or in Chapter 11 bankruptcy cases); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th Cir. 1987) (holding that defendant's violation of requirement in 29 C.F.R. § 1602.14, which mandates that an employer must retain "personnel or employment" records of its employees for one year following termination of said employee, entitled plaintiff to "a presumption that the destroyed documents would have bolstered her case").

Under the traditional common law rule, the duty to preserve documents and information arises "once a party has notice that the evidence is relevant to litigation or when a party knew or should have known that the evidence may be relevant to future litigation." Zbylski v. Douglas Cnty. Sch. Dist., 154 F. Supp. 3d 1146, 1162-63 (D. Colo. 2015) (collecting cases); see also Castillo v. Chief Alternative, LLC, 140 P.3d 234, 236 (Colo. App. 2006) (recognizing that duty to preserve arises "so long as the party knew or should have known that the destroyed evidence was relevant to pending, imminent, or reasonably foreseeable litigation"); Air Commc'ns & Satellite, Inc. v. Echostar Satellite LLC, No. 00CV3130, 2009 WL 8726343, at ¶ 14 & n. 3 (Colo. Dist. Ct. Jan. 5, 2009) (same). The simpler case is where a party's first notice of the litigation is the receipt of a complaint. In that circumstance, the duty to preserve relevant documents and information is triggered upon such receipt.

Harder questions arise when litigation has not commenced but a party has notice that litigation may be filed in the future. What constitutes notice of future litigation sufficient to trigger the duty to preserve documents and information? As one court has recognized, "the duty to preserve relevant documents should require more than a mere possibility of litigation." Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007). And the Tenth Circuit has observed that the duty to preserve may arise when litigation is "imminent." Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009). See also Marshall v. Target Corp., 17-CV-00880-WYD-STV, 2018 U.S. Dist. LEXIS 120793, at *5-9...