Creating a Safe Harbor After a Legal Hold Notice

The Federal Rules of Civil Procedure provide a "safe harbor" against sanctions for the deletion of electronically stored data (ESI). Rule 37(e) states, "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

However, when the threat of a lawsuit occurs, the duty to preserve relevant data with a written legal hold notice is triggered. The duty extends to "relevant documents or tangible things," defined by Federal Rule of Civil Procedure 34.

Michael Kozubek

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