eDiscovery Preservation, Spoliation, Litigation Holds, Adverse Inferences.

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eDiscovery Preservation, Spoliation, Litigation
Holds, Adverse Inferences.
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Preservation

• Electronic information can be changed,
  overwritten or obliterated by normal everyday
  use.
• Not physically stable.
• Special attention should be paid to the
  preservation of your clients relevant
  information that has to be produced.

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Preservation

• Civil vs. Criminal data preservation procedures.
• Preservation Orders.
• Third-Party Data
• Employee turnover issues.
• Temporary ESI issues.
• RAM
• Web page/ hyperlinks

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Spoliation

• Spoliation is the negligent or intentional
  destruction or alteration of evidence.
• Parties have a duty to preserve evidence.
• Failure to preserve evidence can lead to
  spoliation claims.
• The courts have a variety of sanctions available
  if spoliation if found.

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Adverse Inferences

• An adverse inference jury instruction may be
  drawn from the fact that documents were
  destroyed. (a spoliation inference)
• Permits a jury to infer that the party who
  destroyed potentially relevant evidence did so
  out of a realization that the evidence was
  unfavorable.
• Can also be sought for late production
  of evidence.

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Litigation Holds

• The litigation hold instruction is the device
  that conveys to the client and its employees its
  data preservation responsibilities. (ZV placed
  the obligation of drafting the litigation hold on
  counsel).
• To effectively draft a litigation hold
  instruction that preserves the proper backup
  tapes or other storage media, targets the key
  players and speaks to all potential
  sources of documents, counsel must know
  its client and their data retention
  systems.

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Litigation Holds

• Issues
• Timeliness
• Record Retention Plan
• Tracking, Monitoring Reinforcement
• Instructions/ Technological challenges

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Sanctions- Spoliation remedies

• Monetary sanctions
• Attorney Sanction
• Defense to Recovery
• Dismissal or Default Judgment
• Evidentiary Presumption
• Courts have examined very closely any destruction
  of records after a duty to preserve has
  been established.