Spoliation Analysis

1. Duty to Preserve Evidence

2. Failure to Preserve Evidence

3. Actions an Attorney Must take

A party has a duty to preserve evidence that is relevant to litigation.

• Duty Arises when party has:
• 1. Notice that evidence is relevant to pending litigation

2. OR, when a party should know that evidence is relevant to pending litigation

3. OR, when a party should know that evidence may be relevant to pending or future litigation.

A party's failure to preserve evidence once the duty to preserve is attached is referred to "spoliation"

• Spoliation is:
• - the destruction or significant alteration of evidence
• - OR, the failure to preserve property for another's use as evidence, in pending or reasonably foreseeable litigation.

Spoliation of evidence is a SANCTIONABLE conduct.

As an attorney for a defendant, you must take certain actions to ensure that evidence relevant to the case is preserved.

1. Must Issue a "Litigation Hold", communicating to all key players in the litigation and to the information technology personnel that normal destruction/retention policies must be suspended with respect to evidence relevant to the litigation.

2. Must periodically remind key players and IT personnel of the existence and importance of this litigation hold during the course of the litigation.

• 3. Must ensure all sources of potentially relevant information are identified and placed on hold.
• - To do this must become familiar w/client document retention policies and data retention architecture
• - Requires speaking to to IT to understand company's backup procedures and data base recycling policy
• - Must also speak to key players in litigation in order to understand how they store information.

• 4. Must instruct all employees to retain and produce electronic copies of their relevant active files.
• - Must ensure all backup media that party required to retain is identified and stored in safe place.