The Threat of Spoliation and Sanctions for E-Discovery Violations
There is a great article on the swell of sanctions and spoliation instructions that we have seen in the last several months in this month's e-Discovery Law & Strategy. (A copy of the article is available for non-subscribers here). The author also gives some good advice for companies and counsel having to produce electronic documents.
Let me take issue with one of the author's points, and it is one that many commentators make: that "when faced with litigation" a company should suspend automatic document destruction policies. Sanctions and spoliation instructions can be issued for destruction of electronic evidence before a lawsuit is filed, when the company is on notice that it might be party to a later suit. Given that backdrop, how often is a company completely litigation free? Most even regional companies are constantly in the midst of or facing some litigation. And e-discovery is becoming so common that you have to consider electronic evidence in most of those cases.
In other words, e-discovery is a near constant issue for companies, not an occassional endeavor. I would suggest that, rather than suspending your document retention and destruction policies when litigation may arise, instead you should incorporate plans for preserving and producing electronic data in those policies. If you have to adjust your plans for a specific case, that is still better than facing a spoliation instruction in a multimillion dollar lawsuit because you did not plan ahead.