Major Recent Developments in Electronic Discovery and Thoughts on Information Management Jeffrey Klein Adam Cohen David Lender [email protected] November 9, 2004 Agenda Spoliation Cost shifting Proposed Federal rules changes Benefits of an information management policy
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Doc Retention Policy
Duty to Preserve
“While a litigant is under no duty to keep or 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 reasonably foreseeable litigation.”
Scott v. IBM Corporation, 196 F.R.D. 233 (D.N.J. 2000)
“We would like to request a change of venue to an entirely different legal system.”
(1) party having control over evidence had duty to preserve at time it was destroyed;
(2) that the records were destroyed with a culpable state of mind;
(3) that the destroyed evidence was relevant to party’s claim or defense so that trier of fact could find that it would support that claim or defense.
“If you decide that UBS could have produced this evidence, and the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS.”
“In deciding whether to draw this inference, you should consider whether the evidence not produced would merely have duplicated other evidence already before you. You may also consider whether you are satisfied that UBS’s failure to produce this information was reasonable. Again, any inference you decide to draw should be based on all of the facts and circumstances in this case.”
“It’s like cow crap; the more you step in it; the more it stinks.” Morris v. Union Pacific Railroad, 2004 WL 1432288 (8th Cir. 2004).
(5) Attorneys must monitor compliance including periodic follow-ups.
“No. I’m not backing up our files – I’m just assuming that the F.B.I. is making copies.”
COST SHIFTING assuming that the F.B.I. is making copies.”
“A lawyer unpaid is justice denied.” assuming that the F.B.I. is making copies.”
From the Legal Perspective assuming that the F.B.I. is making copies.”Fundamental Characteristicsof a Sound IMP