Court Orders Party to Preserve Tapes of Recorded Phone Calls, and to Meet and Confer re Document Preservation Plan

Del Campo v. Kennedy, 2006 WL 2586633 (N.D. Cal. Sept. 8, 2006)

Plaintiff sued the District Attorney of Santa Clara County (George Kennedy) and American Corrective Counseling Services, Inc. ("ACCS"), a private company that operates a Bad Check Restitution Program under contracts with district attorneys in California. The program is designed to return lost monies to the victim and provide rehabilitation for the offender. Plaintiff alleged that ACCS unlawfully threatens to prosecute program participants and attempts to collect fees not allowed under the statute.

In June 2006, plaintiff filed an ex parte request for an interim order requiring preservation of documents. Plaintiff claimed to have recently learned that ACCS routinely tapes phone calls and routinely destroys the tapes on a two week schedule. Although the court denied the request on procedural grounds, the court ordered ACCS to abstain from destroying any existing tapes.

In this decision, the court ruled on plaintiff’s motion to prevent the destruction of documents and for an order requiring the parties to meet and confer to develop a document preservation plan. Evidence was presented that showed that ACCS had installed a new phone system in May of 2006. One feature of the system was the ability to automatically record all calls. ACCS apparently tried the automatic recording system for approximately one month and then discontinued the automatic recording in June of 2006. ACCS preserved the recorded calls on digital discs, in accordance with the court’s order.

Opposing the motion, ACCS claimed there was no evidence that the tapes were going to be destroyed. Plaintiff, however, attached a printout of email from ACCS counsel stating "ACCS plans to maintain any such routine recordings only for two weeks, then discard them in the normal course of their business affairs.” The court found that this was “solid evidence of pending destruction.”

ACCS further argued that it should be relieved from the "burden" of maintaining the discs. The court noted that ACCS had not provided any details of the alleged burden. “Accordingly, there is no evidence of any burden, undue or otherwise, that would cause the court to allow ACCS to destroy potentially relevant documents.”

The court concluded that, in light of the disagreements the parties had already had, the need to meet and confer to develop a document preservation plan was obvious. It ordered the parties to meet and confer to develop a document preservation plan, and, in the event they were unable to reach agreement, submit a joint statement of the issues in dispute and a brief argument in support of their positions.

The court also concluded that an interim preservation was also appropriate and ordered that, until the parties agree upon (or the court imposes) a document preservation plan, the parties were prohibited from destroying discoverable material, including records of communications with, and collection activity concerning, putative class members.