It is well-established that parties to a litigation have duties to preserve documents when litigation is reasonably anticipated. Attorneys should too be aware that nonparties to a litigation may be obligated to preserve documents in certain circumstances. Indeed, while the case law governing nonparty preservation is still evolving and varies widely across states and circuits, nonparties may expose themselves to liability for failure to preserve evidence that is relevant to a litigation. As nonparty discovery is a regular consideration in virtually all complex litigation, practitioners producing or seeking production from nonparties, as well as those representing nonparties, are well-served to consider the case law governing nonparty preservation.
All litigants are required to “retain all relevant documents … in existence at the time the duty to preserve attaches” and the “scope of the duty extends to ‘any documents or tangible things (as defined by Rule 34(a)) made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’”1 The “concept of ‘control’” under Rule 34 has been “construed broadly” and “does not require that the party have legal ownership or actual physical possession of the documents at issue.”2 Accordingly, the law imposes on parties a duty to preserve potentially relevant third-party evidence within that parties’ “control” determined by “when it has ‘the right, authority, or practical ability to obtain documents from a nonparty to the action.”3
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