holding that a party has a duty to preserve evidence for litigation “when that party has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.”
How later courts described this case
- holding that a party has a duty to preserve evidence for litigation “when that party has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.”
- granting mandamus relief when an erroneous discovery order likely would have required disclosure of confidential state information or private personal information unrelated to the lawsuit, and observing that “[t]his court has recognized that mandamus may be used as a means of immediate appellate review of orders compelling the disclosure of documents and information claimed to be protected from disclosure by privilege or other interests in confidentiality”
- discussing the power to compel forensic imaging; noting that “forensic imaging is not uncommon in the course of civil discovery” and that “[a] party may choose on its own to preserve information through forensic imaging,” but cautioning that “compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures.”
- holding that the trial court abused its discretion by granting a motion to compel forensic imaging when less intrusive means of obtaining the desired evidence were available
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)
531 F.3d 448, 459 (6th Cir. 2008), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153
The opinion
R. GUY COLE, JR., Circuit Judge,
concurring.
I concur in the majority’s thoughtful opinion and write separately only to recognize the district court’s efforts to resolve this extensive and complex proceeding, which has been made more difficult by Defendants’ repeated delays and the institutional inefficiencies that plague the TennCare system.
This case has been pending for ten years. Since spring 2006 alone, the district court has overseen a discovery process that has included nine hearings and conferences, generating a record that *462 spans more than 1,700 transcript pages. After finding that Defendants repeatedly-violated their agreements set forth in the Consent Decree, breached their agreement with Plaintiffs regarding the dates for ESI discovery, and ignored the district court’s directions to provide ESI to Plaintiffs, the court understandably concluded that extraordinary action was necessary to preserve potentially relevant ESI. And I would ordinarily defer to the discretion of the district court, which has had the arduous job of managing this difficult case— along with another branch of TennCare litigation—for the past decade.
This case is unique, however, in that the court’s order includes the forensic imaging of computers in the custody of individuals not party to this matter, and that the order may lead to confrontations between federal marshals and state officials. Under these circumstances, I agree with the majority that, without evidence that Defendants intentionally destroyed relevant ESI in the past or that they are affirmatively unwilling to preserve all relevant ESI in the future, the district court should first employ less intrusive means to address the perceived discovery violations.
It is clear that the district court’s focus has been to assist the parties in forging a solution that would ensure that Tennessee’s children receive the benefits owed to them under the Consent Decree and federal law. Defendants’ continual noncompliance and acrimonious litigation practice has unfortunately steered this case away from 'such goal, with the costs borne by the judicial system and the citizens of Tennessee. The district court has thus far reserved the exercise of its wide discretion to hold Defendants in contempt or to impose monetary sanctions. If the district court resorts to such measures and Defendants nevertheless continue to disregard their undisputed duty to preserve and produce relevant ESI, the preservation order at issue in this case, in my view, may no longer be considered inappropriate.