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Using the FRCP 26(f) Conference to Effectively Address ESI Preservation Issues

Using FRCP 26(f)

Great emphasis has been placed over the years on the importance of the Federal Rule of Civil Procedure 26(f) conference. This is because FRCP 26(f) offers parties a forum for addressing discovery issues such as the preservation of particular sources of electronically stored information (ESI). Courts expect parties to use the 26(f) conference to discuss issues regarding the preservation of obvious forms of relevant ESI (like email), as well as those that are not so obvious (like web browser history or messaging application data). Raising these preservation issues at the 26(f) may determine whether key evidence is actually retained for litigation.

The Interplay between FRCP 26(f) and ESI Preservation

FRCP 26(f) requires that parties confer regarding discovery issues. This is particularly important with issues regarding the preservation of ESI. Because “a miscalculation can lead to the permanent loss of relevant information,” The Sedona Conference has emphasized the importance of dialoguing with adversaries regarding ESI preservation. A preserving party can raise concerns over retaining certain ESI it believes to be irrelevant while a requesting party can spotlight its interest in having certain relevant evidence preserved.

Doing so at the FRCP 26(f) conference can benefit both sides in litigation. Litigants who take this obligation seriously often find they are able to clear preservation disputes more quickly and effectively. Either the issue resolves informally between the parties or their dispute is crystallized and thus ripe for adjudication by the court. As many courts have explained, this represents a more effective model than postponing discussion over discovery issues until later in the litigation.

Parties who neglect to raise preservation issues at the FRCP 26(f) increase their respective risks regarding preservation issues. A preserving party who allows relevant ESI to be destroyed without conferring beforehand with litigation adversaries (or the court) might become more vulnerable to a motion for spoliation sanctions. A requesting party who fails to mention its interest in having specific evidence preserved could in some instances risk losing access to that information with few if any avenues for recourse. The recent case of Blank v. Tomorrow PCS illustrates this latter point.[1]

Blank v. Tomorrow PCS, L.L.C.

In Blank, plaintiffs served written discovery requests in October 2017 that sought production of “critical e-mails for their case” from defendants. After four and one-half months, defendants finally served “substantive responses” which revealed for the first time that any emails responsive to plaintiffs’ requests were destroyed a couple of months after plaintiffs served their discovery.

In response to plaintiffs’ motion for spoliation sanctions, defendants argued they were not responsible for the email destruction. Explaining that their employees’ email accounts were hosted by Yahoo! (which apparently destroyed the emails arbitrarily from the employee accounts on December 31, 2017), defendants asserted they had no ability to either access or control the emails for purposes of accomplishing preservation. Defendants also disclaimed any responsibility to preserve the emails before Yahoo! destroyed them because they “had no knowledge regarding the e-mails’ relevance.”

After considering the issues, the court accepted defendants’ explanations regarding the Yahoo! emails. The court was not persuaded that defendants destroyed the emails with a “culpable state of mind” since Yahoo!—not defendants—destroyed the messages. Nor was the court swayed by plaintiffs’ argument that defendants should have taken measures to preserve the emails before their destruction by Yahoo!. The court did not determine the emails were relevant until February 26, 2018, nearly two months after their destruction. As defendants were under no obligation to produce the emails at the time of their destruction, the court reasoned they were not at fault for not preserving them beforehand.[2]

FRCP 26(f) Lessons from Blank

There should be no dispute that preserving parties must keep information they know or should know to be relevant after a duty to preserve attaches. Indeed, the duty to preserve is not limited in scope to the relevant information a requesting party happens to communicate to the preserving party. And yet, adversaries often disagree over what evidence should be preserved. Instead of assuming the preserving party will preserve all relevant ESI, the requesting party may consider raising at the FRCP 26(f) conference its interest in having certain categories of information preserved.

In Blank, had plaintiffs used the 26(f) to advise defendants of their interest in obtaining the emails, they might have triggered an affirmative preservation duty for such information at that time. Moreover, this action would have crystallized the parties’ dispute over the emails far earlier in the discovery process. This could have resulted in an earlier ruling obliging defendants to turn over the responsive emails to plaintiffs. Had defendants then failed to take appropriate steps to secure the emails from Yahoo!, sanctions might have been in order. In the end, plaintiffs’ failure to raise the preservation issue at the 26(f) conference forced them to seek the same discovery from Yahoo! through a costly and lengthy subpoena process.

While a different approach to the 26(f) conference may have changed the result in Blank, the lessons from the case go far beyond its holding. Like requesting parties, preserving parties should consider the merits of affirmatively raising questions or concerns over preservation. Those who fail to do so and then allow relevant evidence to be destroyed may be forced to defend their actions before a less sympathetic court than defendants in Blank. Unilateral decisions regarding difficult preservation issues may increase a preserving party’s vulnerability to court sanctions.

With this backdrop in mind, Blank ultimately demonstrates how transparent dialogue at the 26(f) regarding preservation issues can benefit both the requesting and preserving parties.


[1] Blank v. Tomorrow PCS, L.L.C., No. 16-cv-11092, 2018 WL 3136002 (E.D. La. June 27, 2018).

[2] The court’s ruling strains credulity on multiple fronts. While the court neglected to address whether defendants had possession, custody, or control of the Yahoo! hosted emails, many courts have found that litigants in analogous circumstances have the “practical ability” or “legal right” to preserve and produce such emails. See The Sedona Conference, Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control,” 17 Sedona Conf. J. 467, 545 (2016). In addition, defendants should have taken reasonable measures to preserve the emails pending resolution of the parties’ “hotly-contested dispute” over their relevance. See Oracle America, Inc. v. Hewlett Packard Enterprise Co., 16-cv-01393 (N.D. Cal. Aug. 17, 2018). This is particularly the case since defendants issued a litigation hold 14 months earlier that specifically called for the preservation of relevant emails.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
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