Viggo Boserup , Law.com Contributor Published: Nov 19, 2014
As soon as a party is served with a summons and complaint and sometimes sooner, there arises
a duty to preserve evidence, including electronically stored information (ESI). This duty requires
both counsel and clients to comply with any litigation hold and monitor ongoing compliance efforts.
Because spoliation – withholding or hiding evidence – goes to the heart of the litigation process
and is not unlike perjury, failing to comply with the duty to preserve has serious consequences.
Judges have wide discretion in assessing penalties and may impose fines or attorneys’ fees.
They may also give a spoliation inference instruction to a jury, as Judge Scheindlin did in
Zubulake v. UBS Warburg: “[i]f you find that [defendant] could have produced this
evidence, and that the evidence was within its control, and that the evidence would have
been material in deciding facts in dispute in this case, you are permitted, but not required,
to infer that the evidence would have been unfavorable to [defendant].” Many of Judge
Scheindlin’s holdings inZubulakehave been cited in dozens of other cases and form the
foundation for much of the Federal Rules of Civil Procedure adopted in 2006.
Due to the serious consequences of spoliation, counsel and their clients must ensure
every effort is made to comply with the duty to preserve.
Read more: http://www.law.com/sites/viggoboserup/2014/11/19/the-duty-to-preserve-electronically-stored-information/#ixzz3Jj40Mevb
