By now the names are all too familiar: Pension Committee, Rimkus, Victor Stanley II and Orbit One. A raft of opinions in the U.S. courts throughout 2010 and beyond highlight the uncertainty and growing risk associated with the lack of uniformity around preservation practices in the Information Age. Not surprising, such lack of specificity and consistent direction results in attorneys, both retained and inside counsel, being obligated to perhaps conform to a “lowest” or “highest” — depending on one’s perspective — preservation standard. And an unfortunate consequence is that some attorneys and their clients may fail to act at all out of confusion, while others overreact and self-impose undue burdens. These reactions only worsen the problem for the legal community and litigants.
Many commentators agree that greater uniformity is needed. However, the best approach may take time to gain momentum and even longer to gel into a formal amendment to the Federal Rules of Civil Procedure or other laws. Nevertheless, Pension Committee, together with Rimkus and Victor Stanley II, has begun the debate. This article will look at the events that have catalyzed the discussion and how the conversation is shaping up.
