How to Fulfill Document-Preservation Obligations

http://ow.ly/7JJNs

An article by Barbara S. Nicholas published by the Texas Lawyer, and appearing on law.com on the LTN webpage.

This article focuses on the duty of counsel to ensure that evidence potentially relevant to a litigation is being preserved. These preservation obligations extend to not only paper records, but also to all forms of electronically stored information.

The article states, "An attorney should issue a written litigation hold immediately upon notice of a triggering event (e.g., potential claim) or a suit, whichever comes first. In a perfect world, the initial demand for litigation hold would contain the universe of information necessary to capture all systems and parties relevant to the claim or suit.

But the real world is not always perfect. Lawyers and clients rarely have complete information at the outset of a dispute. As such, document preservation is not a one-time process initiated at the commencement of a case or upon some other pre-litigation triggering event. It is an ongoing obligation, continuing throughout the course of the litigation."

The article goes on to provide some advice to attorneys as to how to properly meet their obligations. Four tips are suggested, and narrative discussion is provided in the article around the following four topics;

• Communicate;
• Identify;
• Update;
• Produce.

The article further states, "If the documents are not reasonably available in the ordinary course of business, a lawyer should object, as the Weekley court noted, "on grounds that the information cannot through reasonable efforts be retrieved or produced in the form requested.""