So much has been written about the duty to preserve electronic evidence that there is little room left for original scholarship. Simply stated, the duty arises when litigation is reasonably anticipated. Compliance can be shockingly expensive, yet counsel and litigants who fall short of the court’s expectations could pay a heavy price, including monetary sanctions, default judgments and adverse instructions to the jury, to name just a few.
The miasma of rules and rulings that have followed the now familiar series of opinions issued by Judge Shira Scheindlin in Zubulake v. UBS Warburg LLC have turned the early stages of litigation into a logistical and financial nightmare for inside counsel, who must balance their obligations to the court with the often inconsistent fiscal demands of their clients. In this article, we focus on three steps you can take before the duty to preserve arises to ensure that compliance will be as efficient, effective and painless as possible.
2. Create and enforce a document retention/destruction policy.