Case Law: The Duty to Preserve
Legal counsel should be involved and the duty to preserve should not be delegated solely to individual employees.
The duty to preserve is owed to the court, and it means that all relevant data under a parties' control must be preserved.
The duty attaches once litigation is reasonably foreseeable. This is difficult to assess, so litigants should err on the side of caution.
Personal devices and data held by third parties can be subject to the duty to preserve. Legal holds should be specific and comprehensive.
Formal legal holds are necessary to avoid spoliation and sanctions, ranging from attorney's fees in some instances and even an adverse jury instruction or default judgment under extreme circumstances.
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Rules: The Duty to Preserve and the FRCP
Both the courts and the parties are responsible for just, speedy, and inexpensive litigation.
Discovery must be proportional to the action. Parties will need to consider numerous factors when making requests.
Sanctions may be imposed upon parties for the loss of ESI in extreme circumstances.