At this point in the discovery revolution, there is no question that savvy litigants have become sensitive to the need to preserve documents and, particularly, electronically stored information (ESI). While the cost of even marginal preservation steps can be quite high, the failure to act promptly can lead to the unintentional loss of documents (through the recycling of disaster recovery backups or the operation of automatic deletion routines in e-mail mailboxes) and unpleasant litigation consequences.
As numerous courts have made clear, parties have an affirmative obligation to preserve potentially relevant documents when litigation is “reasonably anticipated.”1 And, while the question of when litigation is “reasonably anticipated” is fact-specific and, at times, murky, there is at least ample authority as to what the operative rule is, and a growing body of case law that is filling in the interstices.
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