By: J. Ellsworth Summers and Scott St. Amand

As we mentioned in our previous posts regarding document preservation, establishing a written document retention and destruction policy is essential to any company, large or small. As with the Pradaxa case out of the Southern District of Illinois, a recent case out of the Northern District of New York, Research Foundation of SUNY v. Nektar Therapeutics , exemplifies the pivotal role such a policy has in the event of litigation. RF SUNY brought complex breach of contract and breach of the implied duty of good faith and fair dealing actions against Nektar, but it was the defendant, Nektar which filed the instant spoliation motion.

Nektar alleged that the RF SUNY was grossly negligent for failing to preserve documents which “may have been relevant to future litigation” as well as being grossly negligent “in its efforts to preserve documents.” Nektar also alleged that RF SUNY failed to “to timely issue written litigation-hold notices,” “preserve all relevant backup-tape data,” and “suspend its auto-delete practices.” 

In a brief memorandum opinion, the court disagreed with Nektar, instead finding that “RF SUNY had in place, since 2001, a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement and confirmed that no custodian had deleted any documents related to this matter.” The court went on to note that even though RF SUNY’s document retention protocol had “some shortcomings,” RF SUNY was “at most, negligent in its effort to preserve evidence related to [the] litigation.”