Failure To Adequately Advise Clients On Their Preservation Obligations Can Be Considered Malpractice

By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents. Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant's motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively "Plaintiffs") sued their law firm Miller, Rosado & Alogis, LLP ("Defendants") for malpractice. Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants. Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents.

Plaintiffs allege that their defendant attorneys did not provide them with adequate guidance regarding their preservation obligations. Specifically, Plaintiffs claim that Defendants did not provide Plaintiffs with legal advice on how to respond to discovery, how to prepare their discovery responses, or advice on the "retention, storage, production of, or permissible discarding of non-responsive information." Plaintiffs admit that they removed non relevant documents from their production. However, a few months after Plaintiffs made their production, a former employee of Industrial Quick Search submitted a declaration stating that she was instructed by Plaintiffs to remove relevant documents from Plaintiffs' production. At a spoliation hearing, Judge Richard Owen found that Plaintiffs intentionally destroyed documents that were "likely critical to determining the scope of their copyright infringement and misappropriation of confidential information." As a result of this finding, Judge Owen entered a default judgment against Plaintiffs.

In response to this judgement, Plaintiffs brought suit alleging that Defendants failed to issue a litigation hold and failed to supervise Plaintiffs' preservation obligations. Defendants argue that they, as attorneys, did not have a duty to advise Plaintiffs on their duty to preserve potentially relevant documents. Defendants further argue that they issued an "oral" litigation hold and moved for summary...