Recent electronic data discovery decisions abound with examples of litigants making document preservation faux pas , some inadvertent and some intentional. The cases highlight the sometimes colorful bad behavior that has resulted in spoliation and sanctions, such as using a wiping program on your computer after litigation has commenced, [FOOTNOTE 1] throwing a laptop with relevant data off a building and running it over with a car, and making jokes about going to jail for the destruction of evidence — all the while destroying that evidence.[FOOTNOTE 2] But what lessons can be learned by the well-meaning litigant who wants to do the right thing when it comes to data preservation?
If only it were as easy as referring to a widely accepted national set of standards for preservation. Unfortunately, no such guidance exists. The federal case law addressing standards is inconsistent, even within some districts. In Victor Stanley II , 269 F.R.D., magistrate judge Paul Grimm of the U.S. District Court for the District of Maryland observed that, for this reason, preservation is especially daunting for corporations that operate in multiple states and circuits. “Unfortunately, in terms of what a party must do to preserve potentially relevant evidence, case law is not consistent across the circuits, or even within individual districts,” he wrote.
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