The duty to preserve evidence is an important obligation in the context of litigation. And such a duty can arise prior to the filing of a lawsuit. As a result, a critical question for potential litigants and their counsel is: exactly when does this important duty arise?
The answer to this question is important, as a misstep may lead to the imposition of sanctions. In January the Massachusetts Superior Court Business Litigation Session issued a decision that appeared to set a new standard for when the duty to preserve evidence arises. The decision states that a potential litigant is duty bound to take affirmative steps to preserve evidence not only when it seems that litigation is likely, but “if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action” (emphasis added).
A Discovery Dispute
The JFF Cecilia v. Weiner Ventures LLC, et. al. case involves a dispute between business partners on a construction project in Boston. According to an order issued on January 6, 2023, after the defendants backed out of the project, counsel for one of the plaintiffs sent a dispute notice on August 20, 2019, as required by the terms of the parties’ agreement. The letter specifically reserved plaintiff’s legal and equitable rights but made no mention of pending litigation. Counsel for the parties continued to communicate. The plaintiff sent another letter on October 1, 2019, proposing terms for resolution, “or [plaintiff] would be compelled to recover through other mechanisms. . .” A complaint was ultimately filed on October 23, 2019, and the parties proceeded to discovery.
After discovering large gaps in defendants’ document productions, plaintiffs were informed that two defendants had not preserved, or had affirmatively destroyed a series of text messages, email correspondence, and voicemails citing routine practice. These items were from the time that the parties were partnering on the project, as well as the period following defendants’ withdrawal from the project. Plaintiffs filed a motion for sanctions on September 30, 2022, alleging that defendants were reasonably on notice of the likelihood of litigation from August 20, 2019, until the filing of the lawsuit on October 23, 2019, and that defendants had failed to preserve, or affirmatively destroyed, potentially relevant evidence.
The Possible Action Standard: A Forgotten Standard?
In his original ruling, Judge Salinger denied Plaintiffs’ motion for sanctions finding that Plaintiffs had not shown that a reasonable person, before October 1, 2019, would have thought it very likely that they would be sued. Judge Salinger also found that Plaintiffs were not prejudiced by the alleged spoliation of evidence.
Plaintiffs appealed the denial. A single justice on the Appeals Court (Henry, J.) issued an order remanding the decision for clarification of the appropriate standard. Justice Henry specifically inquired whether the standard set forth in a 2009 Supreme Judicial Court case controlled. In that case, the SJC explained that “[t]he doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.” Scott v. Garfield, 454 Mass. 790, 798 (2009) (emphasis added). For the purposes of this article, this standard will be referred to as the “possible action standard.”
n remand, Judge Salinger reversed his earlier decision and noted that the remand order required him to interpret the possible action standard differently than he had the first time – “something materially different than ‘likely litigation.’” Citing the dictionary definitions of “possible” and “likely,” Judge Salinger determined that “[a] future lawsuit is ‘possible’ if it is ‘within the limits of ability, capacity, or realization.’ Webster’s Ninth New Collegiate Dictionary at 918 (1991). In contrast, litigation is ‘likely’ only if it has ‘a high probability of occurring.’ Id. at 692.”
As a result, lawyers are asking whether this decision created a new standard for the duty to preserve evidence – namely if a defendant would have reasonably thought litigation was possible. Looking more closely, however, it may be that rather than creating a new standard, this case has uncovered a collective misremembering of Massachusetts law surrounding the duty to preserve and spoliation of evidence.
The Mandela Effect
In 2009, American writer, Fiona Broome coined the term the “Mandela Effect” to describe the phenomenon of collective false memories. A commonly used anecdote of the Mandela Effect is the spelling and pronunciation of the bear family from the popular children’s books the Berenstein Bears. . . or is it the Berenstain Bears? If you thought it was the Berenstein Bears, you’re in company of the likely (and incorrect) majority. Similarly, you wouldn’t be alone in assuming that the duty to preserve evidence arose when the threat of litigation was likely or probable. So, did the JFF Cecilia case change the threshold for when the duty to preserve commences, or has it always been when “a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”?
Unlike the Berenstain Bears, the answer here is not clear: it may be both. The original case using the possible action language cited by Judge Henry is Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (“[s]anctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”) (emphasis added).
The “likelihood standard,” – distinguished in Judge Salinger’s January 30, 2023 ruling and probably the most recognizable to Massachusetts lawyers – seems to have appeared for the first time in Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549–50, (2002) (“[w]e have implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”) (emphasis added). Yet less than three sentences later, the Fletcher court cites Kippenhan and the possible action standard. The question remains, what is the standard?
What is the standard for the duty to preserve in Massachusetts?
Although the possible action standard laid out in Kippenhan remains good law, it seems that somewhere along the way, the standard got conflated with a narrower probability or likelihood standard. This was not by imagination or mistake. While it seems to be a case of the Mandela Effect, it was likely a result of the more nuanced language used by Massachusetts courts since 1998, which often appear alongside the possible action standard.
Courts in Massachusetts have performed fact-sensitive inquiries into cases involving disputed instances of spoliation to discern what is really possible between two parties. In many of the cases that discuss and apply the possible action standard, the standard is qualified by explaining more nuanced, narrow scenarios when litigation is deemed to be possible. “Possible,” then, is a term of art. As such, the law is left with various synonymous standards cited alongside the possible action standard. Courts use words such as “likely,” “potential,” “forthcoming,” “upcoming,” and “probable,” among others to describe when a defendant should have anticipated the litigation for which evidence has allegedly been spoliated.
hen discussing spoliation, courts look at the facts surrounding the dispute, the timing of the parties’ knowledge regarding the dispute, as well as factors that may mitigate a party’s reasonable expectation of litigation, to determine whether spoliation occurred. This ad hoc inquiry, while seemingly negating the utility of a spoliation standard, is in fact useful in better understanding the context in which the possible action standard is implemented. Indeed, in Kippenhan, the court sharpened the focus of when litigation may be deemed possible:
The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute. . .
Kippenhan, at 127 (emphasis added).
As a result, Massachusetts courts seem to have relied on Kippenhan as a starting point for fact-sensitive inquiries. This further suggests that the long-held likelihood or probability standards are quite possibly a result of a collectively accepted, intuitive short-hand within which the standards for the duty to preserve and the spoliation of evidence have evolved from the simple possibility of future legal action to something more apparent.
However, as the courts work to clarify the bounds of the duty to preserve, lawyers should err on the side of preservation, as the simple act of questioning whether to preserve could be construed as knowledge of the possibility of such evidence being relevant to a possible action.
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 Indeed, even the Mass Guide to Evidence, Section 1102 cites the possible action standard from Kippenhan.
 See, e.g., Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003) (“. . .defendant should have been aware of a likely claim at least as early as May 1, 1987, the time that it filed a notice with RMF of a potential claim based on the plaintiff’s injuries”); MacLellan v. Shaw’s Supermarket, Inc., 2008 WL 2889921, at *1 (Mass. Super. June 23, 2008) (“[p]ersons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”).
 See, e.g., Reliance Ins. Co. v. Total Tech. Servs., Inc., 72 Mass. App. Ct. 1116 (2008) (“Sanctions may be appropriate for spoliation that occurs even before the commencement of an action if a party knows or reasonably should know that litigation is forthcoming and that the evidence will be relevant to that litigation”).
 See, e.g., Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 112–13 (2005) (“The doctrine of spoliation ‘is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results’”).
 Order of Sanctions for Spoliation of Evidence, Maclellan, (Mass. Super. June 23, 2008) (imposing sanctions where Defendant was “on notice of probable litigation” when alleged spoliation occurred).
 Notably, the cases that use these synonymous terms also cite to Kippenhan in their analysis of the law surrounding the duty to preserve evidence.