There is no consensus among state or federal courts on the standards that govern preservation and spoliation issues. Yet, whether and when a company has a duty to preserve evidence is among the first questions that come to mind for inside counsel considering spoliation issues. Generally, a company has no duty to preserve evidence before litigation is filed, threatened or reasonably foreseeable unless there is a statutory or regulatory mandate, a contractual obligation, some special circumstance, or an organization has voluntarily assumed an obligation to retain some document, data or thing. That means, unless a company has notice of a probable or pending litigation or a government investigation, it generally has the right to dispose of its own property, including documents, electronically stored information or tangible things, without liability.

So, when does a company have a duty to preserve documents, data or things that may be relevant to a government investigation or a lawsuit? There are several subtle variations in standards for establishing when a pre-litigation duty to preserve evidence may be triggered. In large part because plaintiffs control when litigation is commenced, a plaintiff’s duty to preserve is often triggered before litigation is commenced. However, it does not matter if a company initiates or is the target of litigation; most courts find that the common law duty to preserve evidence arises the moment litigation is “reasonably anticipated.” (e.g., Micron Tech., Inc. v. Rambus Inc.)

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