Haynes and Boone's Newsroom
Analysis of Records Hold Issues and Case Law on the Duty to Preserve Data
Mark Trachtenberg, Pierre Grosdidier, Ph.D.
This memorandum provides an overview of the current state of the law regarding the duty to preserve documents and data. As spoliation claims have increased nationwide, courts have developed widely varying standards regarding the onset of the duty to preserve evidence, the scope of evidence to be retained, and the sanctions that may be imposed for violations of the preservation duty. Because court decisions are unclear and often inconsistent, industry groups, such as The Sedona Conference®, are working to develop consistent standards to guide litigants regarding the triggering and scope of the retention duty. This memo is not intended to provide advice on the specific standards that companies should adopt, but instead aims to provide a basic overview of the issues and the rulings. Meanwhile, litigants and potential litigants have no choice but to keep a diligent watch on the emerging standards stemming from litigation, identify risks, and adjust their policies and practices accordingly.
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