United States District Court, D. Minnesota
ORDER AND NOTICE OF HEARING
R. THORSON UNITED STATES MAGISTRATE JUDGE
15, 2018, counsel for Plaintiff contacted the
undersigned's chambers to report that it was recently
discovered that documents belonging to a defendant and
subject to discovery may be auctioned to a third party.
Apparently, these documents were recently discovered in a
storage locker. Plaintiff's counsel was directed to
immediately meet and confer with the lawyers for all parties
to determine what, if any, relief might be sought from the
Court. The same day, counsel called chambers to report that
the issue had been resolved. The next day, questions about
the documents were raised again during a hearing before Judge
Patrick Schiltz. Hearing this, the undersigned requested a
conference call, which was held at 1:00 p.m. on Wednesday,
May 16, 2018.
that call, the undersigned learned from counsel that Elmore
Academy documents had been auctioned to a third party.
According to counsel for Elmore Academy, the discovery of
these documents and the auction was a surprise. As counsel
explained, Elmore Academy believed that all of its documents
had been destroyed some time ago. At this point, there has
been no explanation as to how or why these documents were
retained. After discussion, counsel for Elmore Academy agreed
to take immediate steps to attempt to secure the documents so
they could be protected and preserved. Specifically, Elmore
Academy's counsel agreed to immediately attempt to
contact the third party to confirm that the documents were
secured, preserved, and not further distributed. All counsel
agreed to submit an update to the Court on Thursday, May 17,
Thursday, May 17, 2018, counsel reported that the documents
were secured in a locked and dry facility and that the third
party agreed not to destroy them. The Court, however, also
learned that the third party had already destroyed some of
the documents before connecting with Defendant's counsel.
The undersigned has no information about when that happened.
Counsel sought another telephone conference to take place
early next week. A telephone conference was set for Monday,
May 21, 2018, at 10:00 a.m..
this Court appreciates the update, inexplicably, neither side
has formally requested any type of preservation order or
protective order from this Court after learning more about
the status of the documents and partial destruction. This
Court believes a protective order is appropriate given the
likelihood that they will be subject to discovery and that
the documents may contain confidential information. A
preservation order is also appropriate under the
circumstances known to date to ensure that third parties in
possession of discoverable documents understand the
importance of confidentiality and preservation. The Court
appreciates that the third parties may have had no idea that
Elmore Academy documents were purchased in the auction.
parties agree that the documents may be responsive to future
discovery requests. The Court has the inherent authority to
issue a protective and preservation order sua
sponte. See Fed. R. Civ. P. 26(c); McCoy v.
Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D.
on the foregoing, IT IS HEREBY ORDERED that:
“Documents” are defined as the Elmore Academy
documents found in the storage locker;
Until further ordered, the Documents must be treated as
confidential because they may include personal information
subject to protection pursuant to a rule, statute, law,
contract or other obligation to keep the information
Until further ordered, the Documents must be preserved;
Until further ordered, the Documents or information contained
in the Documents must not be further distributed except as
permitted by this Order;
Until further ordered, only outside counsel for the parties
in this case may review the Documents and all information
must be kept confidential;
Until further ordered, third parties having possession of the
Documents must not disclose or share the Documents with
anyone other than this Court and counsel of record in this
case. Defendants' counsel is responsible for coordinating
hand delivery of a copy of this Order to all known third
parties having possession of the Documents no later than
Friday, May 18, 2018;
Defendants' counsel must work with Plaintiff's
counsel to prepare a plan and proposed order that will
preserve the Documents and also operate to protect ...