Litigation Alert: In-House Counsel Sanctioned for Failing to Monitor the Preservation of Electronic Evidence


In the latest escalation of penalties on those who ignore their records management responsibilities, a federal court has sanctioned in–house counsel for his failure to ensure that prospective evidence, including laptops and e–mails, was properly preserved. More ominously, the September 2009 decision in Swofford v. Eslinger1 levied the monetary sanction even though in–house counsel had relayed to six of his senior colleagues a request to preserve evidence relating to the events at issue. Although the facts of Swofford were particularly dramatic—plaintiff had been shot by defendant law enforcement officers, who then wantonly destroyed physical evidence as well as relevant e–mails—it further signals courts’ willingness to sanction companies, and now their in–house counsel, who have no specific procedures in place for identifying and preserving e–mails and hard–copy evidence once it reasonably may be anticipated that such evidence will be discoverable in litigation.2

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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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