One of the changes in the law that has occurred since I began practicing is what is commonly referred to as the Litigation Hold. It is now common in every case for the litigants to be informed to preserve evidence in all of its various forms due to the possibility that the evidence may have to be produced in some fashion in the case. Companies should not take this obligation lightly. To the contrary, a skilled and responsible person should be charged with ensuring that no one in the organization accidentally (let alone intentionally) deletes, alters or destroys potential evidence. With the advent of the Litigation Hold has come the advent of the spoliation motion. This entails the adversary claiming that, by virtue of the fact that some piece of evidence has not been preserved and produced in litigation, the other party should suffer some type of sanction, including on occasion having a default entered against it. This can all be avoided if the organization takes its obligation to preserve evidence seriously from the outset. Discovery in complex business cases can be extremely expensive and time consuming, but no company wants to be in the unenviable position of having to defend a spoliation motion that is well grounded in the company’s failure to have take adequate precautions to preserve evidence at the outset of the case.
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