By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents.  Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively “Plaintiffs”) sued their law firm Miller, Rosado & Alogis, LLP (“Defendants”) for malpractice.  Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants.  Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents.

Plaintiffs allege that their defendant attorneys did not provide them with adequate guidance regarding their preservation obligations.  Specifically, Plaintiffs claim that Defendants did not provide Plaintiffs with legal advice on how to respond to discovery, how to prepare their discovery responses, or advice on the “retention, storage, production of, or permissible discarding of non-responsive information.”  Plaintiffs admit that they removed non relevant documents from their production.  However, a few months after Plaintiffs made their production, a former employee of Industrial Quick Search submitted a declaration stating that she was instructed by Plaintiffs to remove relevant documents from Plaintiffs’ production.  At a spoliation hearing, Judge Richard Owen found that Plaintiffs intentionally destroyed documents that were “likely critical to determining the scope of their copyright infringement and misappropriation of confidential information.”  As a result of this finding, Judge Owen entered a default judgment against Plaintiffs.

In response to this judgement, Plaintiffs brought suit alleging that Defendants failed to issue a litigation hold and failed to supervise Plaintiffs’ preservation obligations.  Defendants argue that they, as attorneys, did not have a duty to advise Plaintiffs on their duty to preserve potentially relevant documents.  Defendants further argue that they issued an “oral” litigation hold and moved for summary judgement.

The Court denied Defendant’s motion for summary judgement by citing to Mosel Vitelic Corp. v. Micron Tech., Inc., 162 F. Supp. 2d 307, 311 (D. Del 2000) which stated that the “affirmative duty to preserve material extends to that party’s attorneys.”  The Court further cites to Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991) which held that the obligation to preserve relevant documents ran first to counsel, who had a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.”

The Court went on to specify that this “duty” on attorneys included implementing a litigation hold, overseeing compliance with the litigation hold, and monitoring their client’s compliance with the litigation hold.  In light of this duty, the Court held that an attorney’s failure to fulfill this obligation falls below the ordinary and reasonable skill possessed by members of the legal bar, giving rise to malpractice risk.  Applying this standard, and in the absence of a written litigation hold notice, the Court denied Defendants’ motion for summary judgement.

What Does This Mean?

Practically speaking, an attorney’s failure to advise their client on their preservation obligations can be considered legal malpractice.  In order to avoid a malpractice claim, litigators should “lead the charge” with respect to preservation.  They should draft a detailed litigation hold notice, work with their clients to identify recipients of the hold, specify the types of documents to be preserved, and answer any clients have regarding preservation throughout the pendency of the litigation.  Simply telling a client to preserve all potentially relevant documents is not nearly enough, and this ruling reinforces the established principle that attorneys have a duty to advise their clients on appropriate preservation steps.