A party can claim work product protection only for the documents it created after it first reasonably anticipated litigation. Is that also the moment at which it must start preserving pertinent documents – to avoid a spoliation claim?
Several cases over the past few years have discussed the striking similarity between the mental state justifying the work product claim and the mental state requiring document preservation. However, no court seems to have found spoliation based on such a link – until now. In Sanofi‑Aventis Deutschland GMBH v. Glenmark Pharmaceuticals Inc., Civ. A. No. 07-CV-5855 (DMC-JAD), 2010 U.S. Dist. LEXIS 65323 (D.N.J. July 1, 2010) (not for publication), the court granted plaintiffs’ motion for sanctions for defendants’ spoliation of evidence. The court noted that defendants asserted a work product protection claim for documents created as early as February 23, 2006. Pointing to this work product claim, the court labeled “misguided” defendants’ argument “that the duty to impose a ‘litigation hold’ did not arise until mid‑2007.” Id. at *14. The court ultimately held that “an adverse inference may be drawn with respect to documents systematically destroyed” after February 23, 2006. Id. at *15.
Companies aggressively claiming work product as of an early date should remember the downside risk.