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 *Zubulake*have been cited in dozens of other cases
and form the foundation for much of the Federal Rules of Civil Procedure
adopted in 2006.
http://bit.ly/1xbk7IV
http://bit.ly/1xbk7IV+

-- 
Peterk
Dallas, Tx
Save our in-boxes! http://emailcharter.org
"The problems of our economy have occurred not as an outgrowth of
laissez-faire, unbridled competition.
They have occurred under the guidance of federal agencies, and under the
umbrella of federal regulations."
Senator Ted Kennedy, in defending trucking deregulation in 1978.

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