The Duty to Preserve Electronically Stored Information
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 in Zubulakehave 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.
When Does The Preservation Obligation Arise?
The duty to preserve arises when there is a reasonable anticipation of litigation, such as upon service of a summons, complaint, or preservation demand letter. In Zubulake, supra, the obligation actually arose much earlier. There the court held that the obligation arose when the plaintiff filed her EEOC complaint 2 months prior to even being terminated. The court noted further that the obligation was probably triggered even four months earlier because “almost everyone associated with Zubulake recognized the possibility that she might sue.” Zubulake v. UBS Warburg LLC. Given the wide discretion demonstrated in Zubulake and other cases citing it, counsel are advised to note the trend in the applicable jurisdiction.
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