Shamrock-Shamrock, Inc. v. Tracey Remark

Whether a witness in possession of relevant documents has a duty to preserve documents when issued a subpoena for deposition which does not include a request for documents.

The plaintiff brought a third party action against the defendant for spoliation of documents. The witness was served with a number of amended subpoenas for deposition. However, not until the 6th amended notice, some 10 months after the first notice, did the plaintiff issue a subpoena duces tecum component. Some months prior to receipt of the subpoena duces tecum the defendant obtained a new computer and did not save any records, documents, or emails from the old computer. The appellate court affirmed the trial court’s order of summary judgment in favor of the defendant. The appellate court noted that there was no statute, contract, or discovery request requiring the defendant, a third party witness in the underlying case, to preserve information relevant to the case. The appellate court declined to rule that a third party has a duty to preserve documents in the control of the third party that are potentially relevant to some pending litigation. “Such a broad pronouncement would be tantamount to declaring a general legal duty on any non-party witness to anticipate the needs of others’ lawsuits. There are innumerable circumstances in which a non-party to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation.”

Appellant’s Initial Brief

Appellee’s Answer Brief

Appellant’s Reply Brief

Opinion