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There is surprisingly little case law on the duty of the transactional lawyer, whether in-house or outside counsel, in the preservation of electronic information that may be relevant to existing or foreseeable litigation. That is strange given that transactional lawyers are frequently on the scene long before the litigators arrive, and are often in the best position to ensure that businesses promptly take proper preservation steps. Indeed, by the time a litigator is involved, relevant information may already be lost. It is critical for law firms and corporations to ensure that their transactional lawyers know when information preservation duties arise and how to react when they do.

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