Party Seeks Preservation Order Where Phase III of Litigation Could Occur in 2009, Citing Concerns re Document Retention Policy

United States v. Magnesium Corp. of Am., 2006 WL 2350155, (D. Utah Aug. 11, 2006)

In this decision, the court considered the government’s motion for an order requiring certain defendants "to maintain documents in their possession that are relevant to this case throughout all phases of the litigation." In making the request, the government indicated that it has no reason to believe that the defendants were destroying documents, but also noted that Phase III of the litigation could occur as late as 2009. Since the government did not know whether the defendants had a policy that limits the time that documents are retained, it wanted to ensure that relevant documents were not inadvertently destroyed as part of the defendants’ document retention policy.

In response, the defendants stated that "'[w]here no showing has been made of a significant threat that documents will be lost or destroyed absent an immediate order, a document preservation order generally is not appropriate.’" (Citation omitted.) The Defendants contended that the government failed to make that showing. Further, the defendants argued that the scope of the order requested by the government was too broad. Nevertheless, the defendants did not oppose the entry of a preservation order, as long as it applied equally to the government.

In light of the defendants’ non-opposition to the entry of a preservation order, the court granted the motion in the form suggested by the defendants, and concluded that it would "enter an order requiring both the United States and the non-USM defendants to preserve all documents in their possession relevant to the claims or defenses of any party until this litigation is completed."