Any company entering a contested matter, such as litigation or governmental investigation, has a clearly established duty to preserve evidence (which includes any and all documents and formats, including all manner of electronic evidence and media) regardless of whether it’s supportive or detrimental to the company’s legal position. However, the timing of when the duty to preserve begins is nebulous and the scope of preservation may be daunting. The challenge is for the company and legal counsel to find an acceptable balance between preventing spoliation and sanctionable destruction of evidence and allowing the business to operate in an efficient manner.
With regard to the preservation of records, including electronic records, a variety of applicable rules, regulations and case law come into play. Among them:
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