Presuit Civil Protective Orders on Discovery

• Publication year: 2022

Presuit Civil Protective Orders on Discovery

Jeffrey A. Parness
northern illinois university college of law, jparness@niu.edu

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PRESUIT CIVIL PROTECTIVE ORDERS ON DISCOVERY

Jeffrey A. Parness^*

Abstract

There are few civil procedure laws broadly authorizing trial courts in the United States to consider presuit requests seeking protection from discovery sanctions or spoliation claims in later civil actions. There should be more laws on presuit protective orders addressing information maintenance, preservation, and production.

New presuit protective order laws are most apt where there have been demands by potential adversaries involving alleged information preservation duties under civil discovery laws or under substantive spoliation laws; where the recipients have strong reasons to secure early judicial clarifications; and where the availability and use of presuit protective orders will serve both private and public interests in the just, speedy, and inexpensive determinations of civil claims. New protective order laws are also warranted for some potential witnesses in receipt of presuit information preservation demands.

An Arizona court rule, effective July 2018, authorizes presuit information preservation orders that go beyond the most common forms of presuit discovery. Yet that rule is limited and should not be fully modeled. The Arizona rule speaks only to "the existence or scope of any duty to preserve" electronically stored information (ESI). It allows those in receipt of a "preservation request" for information relevant to an expected or current lawsuit to petition for an order to determine any duty to preserve ESI. Petitioner need not be an

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anticipated adverse party in advance of a civil suit and need not be an anticipated new party to a pending related suit.

New laws on presuit protective orders should go further. They should authorize protective orders concerning both ESI and non-ESI. They should be available even at times when there may not be a legal duty to preserve. These new laws should, however, provide explicit guidelines limiting judicial discretion. Finally, any new laws on presuit protective orders should reflect the unique information maintenance, production, and preservation duties within a judicial system, whether in procedural (as with discovery sanctions) or substantive (as with independent spoliation claims) laws. A one-size-fits-all approach is unwarranted.

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CONTENTS

Abstract................................................................................455

Introduction.........................................................................458

I. Current Procedural Laws on Presuit Information Losses..............................................................................459

A. Introduction................................................................459
B. Discovery Sanctions in Pending Cases......................460
C. Presuit Information Creation, Preservation, and Production and Protective Orders ............................. 466

II. Current Substantive Laws on Presuit Information Losses..............................................................................471

A. Introduction................................................................471
B. Special Circumstance and Voluntary Assumption Claims......................................................................... 474
C. Agreement/Contract Claims ...................................... 476
D. Statutory and Regulatory Claims..............................477

III. New Laws on Presuit Protective Orders..................478

A. Introduction................................................................ 478
B. Current Discovery Laws on Postsuit Protective Orders ....................................................................................480
C. Justiciability............................................................... 481
D. Proper Court ............................................................. 484
E. Necessary Circumstances .......................................... 485

1. Current Lawsuit/Imminent Lawsuit......................486
2. Alternative Means of Protection...........................486
3. Irreparable Harm/Substantial Need.....................487
4. Prospective Parties...............................................487
5. Importance of Information...................................488

Conclusion............................................................................489

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Introduction

There are few civil procedure laws broadly authorizing general jurisdiction trial courts in the United States to consider presuit requests seeking protection from civil discovery sanctions or from substantive spoliation claims in later civil actions (herein presuit protective orders). This Article argues for enhanced availability of orders that can address these requests for, or duties regarding, information creation, preservation, and production in anticipation of later related civil litigation.¹ In particular, it urges that presuit protective orders are most apt where there have been presuit information requests by potential adversaries involving alleged duties under civil discovery laws or under substantive spoliation laws; where those receiving requests have good reasons to secure early judicial clarifications; and where presuit protective orders will serve both private and public interests in the just, speedy, and inexpensive determinations of later information duty issues.²

Currently, an Arizona civil procedure rule³ narrowly authorizes orders for the preservation of certain presuit information that, unlike common forms of presuit discovery, is not aimed at identifying possible defendants, investigating potential causes of action, and perpetuating testimony.⁴ Instead, the rule allows petitions for presuit protective orders, immunizing petitioners from any later discovery sanctions for failing to create, preserve, and produce electronically stored information (ESI).⁵ Because the Arizona rule is limited, it

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should not be fully modeled in creating new presuit civil discovery protective order laws.

In fact, new laws on presuit protective orders should go further than they do in Arizona. They should authorize protective orders concerning both ESI and non-ESI. They should be available even at times when there may not be a clear legal duty to preserve. These new laws should, however, provide guidelines limiting judicial discretion.⁶ Finally, new laws on presuit protective orders should reflect a judicial system's unique information maintenance, production, and preservation duties, whether in procedural (as with discovery sanctions) or substantive (as with independent spoliation claims) laws. A one size fits all approach is unwarranted.

Because civil discovery and substantive spoliation laws on presuit information losses should guide new laws on presuit protective orders, this Article first briefly surveys those laws.⁷ Then it discusses possible new presuit civil protective order laws and explores the related issues of justiciability, choice of forum, and necessary conditions.⁸

I. Current Procedural Laws on Presuit Information Losses

A. Introduction

Presuit information losses can be prevented by presuit discovery or can be addressed postsuit through discovery sanctions.⁹ New laws on preventing and addressing presuit information losses can come from diverse sources—comprised of court rules, statutes, and case law.¹⁰ These laws can be general, as illustrated by civil procedure rules on presuit testimony perpetuation achieved through the depositions of witnesses that would likely be unavailable at a later date.¹¹ These laws

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can also be special, as exemplified by Florida's presuit discovery statute, which implicates medical negligence claims and defenses.¹²

The following two sections generally review current federal and state laws on how presuit information losses can be sanctioned in later civil actions and on how presuit information losses can be prevented by presuit maintenance, preservation, and production orders.¹³ This review will then guide the exploration of possible new presuit civil protective order laws.¹⁴

B. Discovery Sanctions in Pending Cases

Some discovery laws on sanctions for presuit information losses cover only certain information. For example, under Federal Rule of Civil Procedure (FRCP or Rule) 37(e), discovery sanctions are available under Rule 37(e) for lost ESI that "cannot be restored or replaced" and "that should have been preserved in the anticipation . . . of litigation," but "is lost because a party failed to take reasonable steps to preserve it."¹⁵

Some current state civil procedure laws similarly differentiate between losses of certain ESI and losses of other ESI and non-ESI that are enforceable through sanctions in civil actions.¹⁶ Other state discovery laws speak more generally to information losses involving all forms of information, including ESI and non-ESI.¹⁷ Yet other state

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discovery laws follow an earlier (2006) version of FRCP 37(e) by differentiating between all ESI and non-ESI.¹⁸

Additional federal civil procedure laws seemingly authorize sanctions for presuit information losses in limited settings. one federal statute, for example, generally encompasses information losses that so "unreasonably and vexatiously" multiply the proceedings that the attorney or person admitted to try the case can be found liable for excess costs and attorneys' fees.¹⁹ Additionally, there are similar special state laws that address presuit information losses.²⁰

General federal civil procedure laws on sanctions involving discoverable information that was lost presuit and is relevant in pending federal civil actions are chiefly encompassed in the FRCP 37 provisions outside of Rule 37(e).²¹ Separate FRCP provisions in Rule 37 authorize discovery sanctions, inter alia, for "fail[ure] to obey an order to provide or permit...