A "trigger event" is an event that triggers an organization's duty to preserve documents and electronically stored information ("ESI"). Sometimes the event that triggers the duty to preserve evidence is like a large beacon flashing the words “you will be sued,” such as a letter from an attorney advising the organization of a potential claim. The letter may be a clear trigger event if it says “we will sue you” and asks the organization to preserve all related records. In other instances, there will be no notice or warning of a lawsuit or investigation. Courts are in agreement that absent a trigger event, there is no duty to preserve records. Sometimes the event is much more subtle, but visible nonetheless. For example, a group of supervisors talking about a harassment event may create the duty to preserve records. No lawsuit has been threatened or filed; no EEOC complaint has been made. At least one court has held that such a management discussion is, in fact, a trigger event, after which the organization had a duty to preserve related records, including e-mail. Doe v. Norwalk Community College, 248 F.R.D. 372 (D.Conn. 2007).
Notice of pending, potential or threatened litigation or agency investigations can take many forms, including via a preservation letter or other written notice from opposing counsel, pre-litigation discussions, demands or agreements, and facts or circumstances that would otherwise put a reasonable person on notice of potential or threatened litigation or investigation. Most jurisdictions hold that a party has notice of anticipated litigation if a lawsuit is “reasonably foreseeable.” For example, in Blinzler v. Marriott International, Inc., the court held that an inference of spoliation (the legal term for the destruction of relevant documents for the purpose of preventing an adversary from obtaining copies of the documents) is proper only when the destroying party knows “of circumstances that are likely to give rise to future litigation.” Blinzler v. Marriott Intern., Inc., 81 F.3d 1148, 1159 (1st Cir. 1996).
Another illustration of related investigation notice is the Arthur Andersen case. Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). As the demise of Enron unfolded, Arthur Andersen was apprised of significant financial irregularities at Enron at least by August 2001. By early October, the auditor was aware that Andersen would be the target of an SEC investigation concerning the Enron filings. Nonetheless, a massive worldwide document destruction effort was launched during the second week of October 2001. An e-mail from in-house counsel called for compliance with an existing document retention program that in effect required extraneous materials not central to the final audit report to be destroyed. As a result, Arthur Andersen employees destroyed dozens of boxes of paper documents and deleted or overwrote thousands of electronic files (electronic documents, spreadsheets, databases, and e-mails). In early November 2001, Arthur Andersen received its first subpoena for records from the SEC and produced in response the expurgated files. Within two months, in the course of preparing senior executives for congressional testimony, the purge came to light and Arthur Andersen was compelled to inform the SEC and the public. Despite its hope that coming forward might ward off a prosecution for obstruction of justice, Arthur Andersen was indicted and convicted at trial. The conviction was later overturned by the Supreme Court of the United States, but by the time of the decision, the organization no longer existed. 544 U.S. 696.
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