Compare and Contrast: US and UK attitudes to Preservation Sanctions

http://ow.ly/78a7B

An article by Chris Dale on his blog the e-Disclosure Information Project.

This article discusses a panel presentation provided at the recent Masters Conference in Washington D.C.  Mr. Dale states, "The formal title of the panel at the Masters conference wasPreservation: Will this be the next change to the Federal Rules? It was moderated by William Butterfield of Hausfeld and comprised, as well as Allison Stanton, Martin Audet of Nuix, Courtney Barton of AOL, John Rosenthal of Winston and Strawn and Paul Weiner of Littler Mendelson."

The article discusses the issue of preservation, and mentions that is seemingly the main eDiscovery concern at present in the U.S.  Proposed new rules of civil procedure are being discussed regarding eDiscovery, and preservation obligations are at the forefront of those obligations.

The article states, "It is not clear why preservation issues are so serious in the US but are barely heard of in the UK or elsewhere. However patriotic I am, I do not suggest that UK litigants and their lawyers are any more honest, competent or conscientious than their US equivalents; pro rata to the quantity of litigation, there must be as many preservation failures in the UK through dishonesty, through some level of neglect or negligence, or through breach of duty to the court as in the US. The same must be true of other common law jurisdictions. Only the US, however, seems to have made a kind of religion out of it."

The article provides links to many other writings on the topic, and this article is certainly a valuable resource regarding the current status of this issue.

The author further states, "Given that there is as yet no agreement about the need for a new US preservation rule let alone the potential scope of such a thing, it will be at least two years before we will see a rule change. It is equally true that no quantity of judicial views, expressed on or off the bench, will encourage lawyers or their clients to take a more courageous view of their preservation obligations.'

P.S. If you are interested in the extent of preservation obligations, this article should certainly be read in full.