1. eDiscovery Preservation, Spoliation, Litigation Holds, Adverse Inferences. September 15, 2008

2. Litigation Holds The litigation hold instruction is the device that conveys to the client and its employees its data preservation responsibilities. (ZV placed the obligation of drafting the litigation hold on counsel). To effectively draft a litigation hold instruction that preserves the proper backup tapes or other storage media, targets the key players and speaks to all potential sources of documents, counsel must know its client and their data retention systems.

3. What triggers this hold? A complaint Discovery demand letter An EEOC charge Similar claim filed against competitor Customer calls and mail Etc, etc.

4. Who monitors this hold? This obligation goes to counsel to advise the client what data may be potentially relevant and the necessity to preserve Corporate management is charged with conveying this to the employees And the lit team is charged with monitoring and executing this hold –Lit team is outside counsel, inside counsel, corporate management and corporate IT

5. Preservation  Electronic information can be changed, overwritten or obliterated by normal everyday use.  Not physically stable. Special attention should be paid to the preservation of your client’s relevant information that has to be produced.

6. Spoliation  Spoliation is the negligent or intentional destruction or alteration of evidence.  Parties have a duty to preserve evidence.  Failure to preserve evidence can lead to spoliation claims. The courts have a variety of sanctions available if spoliation if found.

7. Sanctions- Spoliation remedies  Monetary sanctions  Attorney Sanction  Defense to Recovery  Dismissal or Default Judgment  Evidentiary Presumption Courts have examined very closely any destruction of records after a duty to preserve has been established.

8. Adverse Inferences  An adverse inference jury instruction may be drawn from the fact that documents were destroyed. (a spoliation inference)  Permits a jury to infer that the party who destroyed potentially relevant evidence did so out of a realization that the evidence was unfavorable.  Can also be sought for late production of evidence.