In our last article, we discussed the fact that e-discovery preservation duties apply equally to transactional attorneys and litigators, despite the lack of any real guidelines provided to the former. In this article, we pose five practical questions to transactional attorneys that may help their clients avoid claims of spoliation if the deal turns sour.
1. First things first, what does your data retention policy require?
3. Maintain situational awareness: What led to the negotiations and proposed deal?
Often clients find themselves at the negotiating table after receiving or sending a cease-and-desist letter threatening litigation unless one side hands over the world to the other. In these situations, litigation is not only reasonably foreseeable, but it has actually been threatened. But too often, we learn of clients who turned off their preservation efforts the minute the parties began to make serious efforts to resolve the dispute. In these situations, you should make every effort to ensure that all key custodians are continuing to preserve documents while the parties work to resolve the dispute.