The Dog Ate My Evidence: Document Destruction Policies And The Duty To Preserve

In This Issue:

- The Duty to Preserve

..What triggers the duty to preserve?

..Who has a duty to preserve?

..What is the scope of the duty to preserve?

- Litigation Hold Notices

- Potential Sanctions

..Adverse Inference


..Monetary Sanctions

..Criminal Sanctions

..Dismissal and Default Judgment

..Spoliation Tort

- Counsel Can Help

- For More Information

- Excerpt from What triggers the duty to preserve?:

Parties have an obligation to preserve potentially relevant evidence from the moment litigation is “reasonably anticipated.” However, it is often hard to determine the exact trigger for the duty to preserve. Sometimes, the trigger can be obvious. It can be a letter threatening a lawsuit or the receipt of a complaint. Other times, the trigger is not as clear. It could include a report of harassment by an employee, an accident at work, or a government investigation. One leading court held the duty to preserve arises when a party “has notice that the evidence is relevant to litigation or when the party should have known that the evidence may be relevant to future litigation.” This inquiry requires a case-by-case analysis that businesses should undertake with the aid of counsel.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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