Pippins’ Class Trip to the Zubulake Zoo: The Pre-Claim Preservation Obligation

Abstract

This Article is about the preservation obligation. The law imposes a responsibility to preserve relevant evidence on those who possess it. The growth of electronic information has changed the nature and increased the costs of such preservation. Case law is rapidly evolving in this area and frequently unclear, with significant variation across jurisdictions that adds to the uncertainty and unpredictability businesses and other entities complain of. It is something of a zoo.This Article focuses on the least well understood aspect of the obligation, that which applies before a discovery request or claim are even filed and its nexus with complex (hence costly) litigation. I look at several common questions about the trigger and scope of the pre-claim duty, using the recent Pippins v. KPMG case to illustrate a number of issues, including those raised by class actions. This Article makes two particular contributions. First, I comprehensively review the caselaw applying the pre-claim obligation. This review shows that the pre-claim obligation has been defined in a narrow and consistent fashion by courts. The obligation is therefore surprisingly clear and easily satisfied, which undermines concerns about large-scale prophylactic pre-litigation preservation. Second, I survey and evaluate the current debate over changes to the FRCP and other measures to address the problems of preservation in the age of ESI.This PDF is a draft excerpt from the Article I describe above. Comments are welcome.