Advancements in technology have fundamentally transformed the landscape for storing and maintaining documents, making it cheaper and more efficient to store data in electronic form. These developments also create new and substantial risks with respect to the duty to preserve evidence if litigation is reasonably foreseeable. To militate against such risk, businesses and practitioners should routinely update their document retention policies, ensure that they have adequate storage and file maintenance capabilities, and conduct employee training related to document preservation. This article examines the duty to preserve evidence in the context of impending or ongoing litigation, what constitutes spoliation of evidence, and the potential consequences that flow from failing to implement sufficient safeguards.

The Duty to Preserve Evidence

The duty to preserve evidence is triggered when a party reasonably believes that litigation is foreseeable and, as such, may arise “many years before litigation commences.” See Micron Technology v. Rambus, 255 F.R.D. 135, 148 (D. Del. 2009). From a pre-litigation standpoint, the rationale behind such an obligation is to prevent a party from subverting the discovery process by discarding potentially relevant evidence prior to the filing of a complaint. When the duty is triggered, however, a party must promptly effectuate a litigation hold in order to preserve potentially relevant documents and move to suspend internal document retention and destruction policies. See William T. Thompson Co. v. General Nutrition, 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (holding that while a litigant does not have a duty to retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows or reasonably should know will likely be requested in discovery). The duty to preserve evidence supersedes routine or informal document retention policies and requires strict adherence to the litigation hold. See MOSAID Technologies v. Samsung Electronics, 348 F. Supp. 2d 332, 339 (D.N.J. 2004)(holding that it is not “a defense to a spoliation claim that the party inadvertently failed to place a ‘litigation hold’ or ‘off switch’ on its document retention policy”); see also State National Insurance v. County of Camden, 2012 U.S. Dist. LEXIS 38504 (D.N.J. Mar. 21, 2012) (sanctioning a party for failing to issue a litigation hold, suspend auto-deletion of email or retain copies of any backup tapes after being notified about a lawsuit against it.).

Considerations for Document Retention Policies