Article by Gina Passarella, appearing on law.com on the LTN website, via the Legal Intelligencer.
This article touches on the fact that sanctions for failing to preserve potentially relevant evidence is the most common reason cited for imposing punishment.
The article discusses a specific case, and some other cases that have followed, and an apparent inconsistency in case precedent. As the article states, "The 2010 Southern District of New York case Pension Committee of the Montreal Pension Plan v. Banc of America Securities made clear a written litigation hold notice was required by the attorney as well as a continued monitoring of the client's preservation policies. But other courts have come down since Pension Committee and not required written hold notices.
LDiscovery's Leonard Deutchman said a party's duty to preserve begins at the first instance litigation might be expected. Sometimes that is obvious, like when the Deepwater Horizon exploded, there was immediately an expectation that litigation might follow. But it's not always that clear. The duty in an employment discrimination case doesn't begin when the employee files a claim with the EEOC, for example, but as early as when he walks out the day he was fired saying "'you'll hear from my attorney,'" Deutchman said.
While the case law has developed on the issue, the federal rules are silent as to a party's preservation obligations at the start of a case, Morgan Lewis & Bockius' Tess Blair said.
The biggest burden in e-discovery, she said, is "this broad, ill-defined preservation obligation.""
There is an effort to possibly augment the Federal Rules of Civil Procedure again, to clarify the preservation obligations that attach to evidence, and this is also discussed in this article.
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