Now consider the duties imposed by state and federal law on parties to a lawsuit. For example, a duty to preserve arises when litigation becomes foreseeable and requires both suspension of current policies that might alter or destroy relevant ESI and affirmative steps such as issuance of written litigation holds and identification of key ESI custodians and locations.
For entities that generate staggering amounts of data on a daily basis, cost-effective compliance may seem impossible. On the other hand, ignoring these obligations creates an even greater risk, particularly as more and more plaintiff s discover that noncompliance can be an eff ective Hail Mary pass. Courts have considerable leeway when it comes to sanctions, which oft en range from monetary penalties, to adverse inferences and jury instructions (i.e., the jury may assume the lost data would have supported a plaintiff ’s claim had it been preserved), to outright dismissal or judgment in more egregious cases.
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