By Andrew Servias
In a lawsuit against a School District involving a sexual assault, a video potentially relevant to the litigation was not preserved by the defendant. As a result, the plaintiff sought terminating sanctions. The trial court granted evidentiary, issue, and monetary sanctions, but refused terminating sanctions relying on an exception in Code of Civil Procedure section 2023.030 (f)(1) which provides that:
[A]bsent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
The Court of Appeal reversed and remanded finding that the “the safe-harbor provision of section 2023.030(f)(1) does not shield a party from sanctions for the spoliation of electronic evidence if the evidence was altered or destroyed when the party was under a duty to preserve the evidence. The duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.” (Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1133 [emphasis added].)
Ultimately, the appellate court also remanded the proceeding for the trial court to make required findings on the level of sanctions, but the decision should remind every attorney of the absolute necessity to ensure they communicate with clients regarding the necessity of preserving any evidence potentially relevant to incidents which could give rise to litigation.
This decision did not address any alleged misconduct by attorneys for any party, but its recency presents another example of the potential confluence between discovery rules governing preservation of evidence and attorneys’ duties to take quick action in this regard.
At a minimum, the need to ensure the client understands these obligations as soon as practical could implicate Cal. Rule Professional Responsibility, Rules1.1 and 1.3 [failure to competently perform services with diligence] arising from failure to immediately address the imperative need for preservation of potential evidence. Also, the failure to fully produce evidence in discovery arguably is a representation by counsel of the adequacy of discovery responses to the court and may subject the attorney to discipline, including suspension and disbarment, for participating in the suppression or destruction of evidence. (Cal. Rules Prof. Conduct, Rule 3.3(a)(1) [lawyer may not seek to mislead court by false statement of fact or law], Rule 3.4(b) [lawyer may not suppress evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce] Rule 1.2.1 [lawyer may not advise violation of any law]; Business & Professions Code § 6106 [act of moral turpitude, dishonesty, or corruption is cause for disbarment or suspension]; see, e.g., Qualcomm Inc. v. Broadcom Corp. (SD Cal Jan 7, 2008) 2008 US Dist. LEXIS 911, at *64, vacated in part, Qualcomm Inc. v. Broadcom Corp. (SD Cal Mar 5, 2008) 2008 US Dist. LEXIS 16897] [When plaintiff’s outside attorneys assisted their client’s discovery violations by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that plaintiff’s document search was inadequate, and blindly accepting plaintiff’s unsupported assurances that its document search was adequate, court referred the attorneys to the State Bar for potential discipline.])
Ensuring clients understand preservation obligations regarding evidence as soon as possible and addressing any failures to preserve with the court immediately is the route to avoid such potential rules violation domino effect.