Glaum v. Braun et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Joseph E. Glaum, 	)
)
Plaintiff, 	) 	ORDER
)
vs. 	) 	Case No. 1:24-cv-146
)
Colby Braun and Joseph Joyce, 	)
)
Defendants. 	)
Before the court are Plaintiff’s: (1) Motion for Order to Preserve Records (Doc. No. 95); (2)
“Request for leave or stipulation to expand/extend time for discovery” (Doc. No. 103); (3) “Request
for stipulation to extend time for discovery Rule 29” (Doc. No. 104); and (4) “Request for
stipulation to preserve records, litigation hold Rule 29” (Doc. 105). Also before the court is a
proposed scheduling/discovery plan in which Plaintiff, among other things, lists various materials
(email communications, call logs, handwritten notes, electronically stored information, etc.) that
may be discoverable. (Doc. No. 106).
Asserting that Defendants may have information about him that is either stored electronically
or filed conventionally in filing cabinets at North Dakota State Penitentiary and elsewhere, Plaintiff
requests that the court issue an order requiring Defendants to preserve information about him along
with other records in this case that may be relevant to his claims. (Doc. Nos. 95 and 105). Further
asserting that Defendants have yet to produce documents responsive to his discovery requests, he
requests that the court extend the deadline for completing discovery until March 13, 2026. (Doc.
Nos. 103 and 104).
On December 12, 2025, and January 12, 2026, Defendants filed responses to Plaintiff’s
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motions and proposed scheduling/discovery plan. (Doc. Nos. 99 and 108). Therein, they affirm the
the general principle of preserving relevant evidence. However, they take the position that Plaintiff’s
requests for a litigation hold are moot as such a hold is already in place. They also advise that they
intend to respond to Plaintiff’s discovery requests. While they do not object to the an extension of
the discovery deadline until March 13, 2026, the assert that Plaintiff’s should be denied insofar as
Plaintiff is seeking an order compelling the production of certain documents.
There being no objection from Defendants, the court GRANTS Plaintiff’s motions/requests
(Doc. Nos. 103 and 104) insofar as Plaintiff is seeking an extension of the discovery deadline.
Accordingly, the parties shall have until March 13, 2026, to complete fact discovery. Insofar as
Plaintiff may be seeking an order from the court that compels production of certain documents or
materials from Defendants, his motions are DENIED as he has not certified that the parties have
conferred in good faith about matters that may be in dispute and participated in a conference with
the court as required by Rule 37(a)(1) of the Federal Rules of Civil Procedure and D.N.D. Civil
Local Rule 37.1. 1
The court shall now turn to Plaintiff’s request for a “litigation hold” and by extension
Defendants’ duty to preserve evidence. The following discussion of this duty by the Minnesota
district court in Valspar v. Millennnium Inorganic Chemicals, Inc. is instructive.
Generally, there is no duty to preserve evidence or documents unless a party
possessing the evidence has notice of its relevance.” Telecom Int'l Am., Ltd. v. AT &
T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999). “Usually such notice is provided when
suit has been filed, ‘providing the party responsible for destruction with express
notice, but also on occasion in other circumstances, as for example when a party
should have known that the evidence may be relevant to future litigation.’ ” Id.
1 The Order for Rule 26(f) Planning Meeting and For Rule 16(b) Scheduling Conference, and Order
Regarding Discovery Disputes issued by the court on June 23, 2025, succinctly summarizes the requirements of
these rules and what steps must be taken prior to the filing of any discovery motions. (Doc. No. 55).
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(citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998); Turner v. Hudson
Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y.1991)). The courts of this District
have phrased this standard as holding “[t]he obligation to preserve evidence begins
when a party knows or should have known that the evidence is relevant to future or
current litigation.” E*Trade, 230 F.R.D. at 588 (D. Minn. 2005) (citing Stevenson
v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004); Zubulake v. UBS
Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)).
The Court's review of the caselaw indicates that a defendant's duty to
preserve evidence with regard to a case is most often triggered at the time the case
is filed, unless the defendant before that time becomes aware of facts from which it
should reasonably know that evidence is to be preserved as relevant to future
litigation. See, e.g., In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299
F.R.D. 502, 512 (S.D.W. Va. 2014) (“It is well established that the duty [to preserve
evidence] is triggered, at the latest, when the defendant is served with the
complaint.”) (citation omitted); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162,
174 (E.D.N.Y. 2009) (defendant's duty to preserve arose when received notice of
discrimination suit filed against it); Cache La Poudre Feeds, LLC v. Land O'Lakes,
Inc., 244 F.R.D. 614, 624 (D. Colo. 2007) (concluding that defendant's duty to
preserve documents was triggered by filing of suit, and noting that, in some cases,
duty may be triggered earlier when defendant has reason know that litigation was
likely); Clark Const. Grp., Inc. v. City of Memphis, 229 F.R.D. 131, 136 (W.D. Tenn.
2005) (defendant's duty to preserve evidence triggered on the filing of the
complaint); but see E*Trade, 230 F.R.D. at 589 (duty to preserve evidence triggered
for corporate subsidiary when it received notice of commencement of a suit
involving actions by corporate parent, even though suit had not actually been
commenced at that point against the subsidiary itself); Broccoli v. Echostar
Commc'ns Corp., 229 F.R.D. 506, 510 (D. Md. 2005) (defendant's duty to preserve
evidence triggered when it was notified of sexual harassment and retaliation
complaints at least thirteen months prior to filing suit); Zubulake v. UBS Warburg
LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (defendant's duty to preserve evidence
triggered four months before commencement of litigation, when the relevant people
at the defendant corporation actually anticipated litigation).
The Valspar Corp. v. Millennium Inorganic Chemicals, Inc., No. 13-CV-3214(ADM/LIB), 2016 WL
6902459, at *4 (D. Minn. Jan. 20, 2016).
Here, Defendants acknowledge they have a duty to preserve evidence and have advised that
they have already instituted a litigation hold (presumably when they were served with Plaintiff’s
pleadings or otherwise became aware that litigation involving Plaintiff was likely). In any event,
if Plaintiff had not requested a litigation hold previously, then he has now done so and Defendants
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are on notice of their duty to preserve relevant evidence. As there is nothing in the record to even
remotely suggest that Defendants have been derelict in this duty, nothing is presently required from
the court. Plaintiff’s requests for a litigation hold (Doc. Nos. 95 and 105) are therefore deemed
MOOT with the understanding that Defendants have been and will continue to preserve evidence
or documents relevant to Plaintiff’s claims during the pendency of the this litigation.
IT IS SO ORDERED.
Dated this 14th day of January, 2026.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States Disrict Court
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