Court Refines Balancing Test for Evaluating Motions for Preservation Orders

Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004)

After the court declared a mistrial based on plaintiff’s mid-trial production of an expert report, the parties cross-moved for preservation orders. The court began its analysis by observing that the four-prong test typically applied to matters concerning injunctive relief was not a completely appropriate test to utilize when examining the need for a preservation order, particularly since proof of a probability of success in the litigation is not an appropriate consideration in determining whether to order preservation of documents.

It opined that the evaluation of a motion for a preservation order demands application of a separate and distinct test, to be formulated by molding the factors used in granting injunctive relief with the considerations, policies and goals applicable to discovery. The court thus articulated a three-part balancing test to be used when deciding a motion to preserve documents, things and land: (1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; (2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and (3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence’s original form, condition or contents, but also the physical, spatial and financial burdens created by ordering evidence preservation. The court elaborated on the third factor in the context of electronic material:

The problems involved in the maintenance of evidence will vary considerably depending upon the medium in which the evidence is contained. If the evidence is stored upon a computer floppy disk or hard drive, finding physical space to store the evidence will not be as much of an issue as it will be in the situation involving an accumulation of paper documentation over a period of many years where a preservation order may have to encompass substantial copying and warehousing. On the other hand, informational evidence stored within a computer hard drive may present a difficulty in that it may be compromised or degraded as new information is added and pieces of old information are “deleted” and subsequently written over by the computer. As a result, the timing of the preservation order may be of the essence, especially if the person possessing the computer is without knowledge that the information contained on the computer hard drive is evidence which needs to be preserved. Such a situation may require immediate action by the court to preserve such electronic evidence at least temporarily in order that the parties may have an opportunity to confirm that such evidence is relevant to the claims before the court. This computer information example is only one hypothetical scenario; the circumstances and considerations to be evaluated in determining the need for a preservation order can be limitless since evidence to be used at trial can be in a myriad of forms and mediums.

220 F.R.D. at 436. Applying the three-part test to the parties’ respective motions, the court found no need or justification to enter an order preserving evidence as requested by the defendant and plaintiffs.