Duty to preserve even more critical in federal probes

There has been considerable discussion about e-discovery in the context of civil litigation, which is where the courts have been most active and new rules have been adopted clarifying litigants’ e-discovery obligations. E-discovery in white-collar prosecutions and government investigations has received less attention. But e-discovery issues can arise in those areas.

By now, most attorneys recognize their clients must take active steps to preserve electronically stored information when they are involved in litigation. The general rule in civil litigation is that the duty to preserve documents arises when litigation can be reasonably anticipated. In the white-collar or government investigation context, the duty to preserve is similar: the duty arises when a government prosecution or investigation is threatened, pending or can be reasonably anticipated. All practitioners should be aware, however, that a failure to preserve documents in a government investigation or prosecution can result in its own criminal charges, such as obstruction of justice.