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Tips on managing electronic data and avoiding spoliation claims



I just read a terrific article on document preservation obligations and spoliation of evidence claims by Emily Duke and Cynthia Moyer of the Fredrikson & Byron law firm in the Summer 2010 ABA Section of Litigation, Committee of Pretrial Practice & Discovery publication.  The article, which I haven’t been able to find 0n-line, contains lots of good tips for both clients and their lawyers regarding their obligations to preserve electronic data for litigation purposes.  Among their very sensible suggestions:

  • Develop and follow a written document retention policy;
  • Have a protocol in place to suspend document destruction in the event of litigation;
  • Familiarize yourself with your clients’ computer and electronic-device architecture, as well as the key players and storage protocols;
  • In the event that litigation is threatened or commenced, written litigation holds instructing clients to preserve all reasonably accessible sources of relevant records should be distributed;
  • Counsel must provide specific instructions during preservation and collection efforts and monitor those efforts, including potentially conducting searches for relevant and responsive data themselves;
  • All efforts to identify, locate, preserve and search records containing relevant electronic data should be carefully documented.

Doing this right can be daunting, but the alternative — judicial sanctions and adverse evidentiary inferences –is far worse!


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