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Polsinelli - Commercial Litigation

November 2013


The Dog Ate My Evidence:
Document Destruction Policies and the Duty to Preserve Evidence


Commercial Litigation

Russell S. Jones Jr.

Practice Area Chair


Stacy A. Carpenter

Practice Area Vice Chair


S. Jay Dobbs

Practice Area Vice Chair



G. Gabriel Zorogastua



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Most companies have adopted document retention and destruction policies to better manage the enormous amount of paper and data that is created through daily business operations. While these policies represent sound management, the failure to properly preserve potential evidence can have devastating effects if the company finds itself in litigation.

The destruction or material alteration of potentially relevant evidence—evidence that might affect pending or reasonably foreseeable litigation—is referred to in the courtroom as spoliation. Spoliation is a significant concern, no matter the type or location of the evidence or the type of case. Businesses that are anticipating litigation, or that are currently in litigation, must take steps to ensure they preserve all potentially relevant evidence. Otherwise, they risk significant sanctions—including losing a case they might otherwise win and paying for all of the other side's fees and costs in the process.

The Duty to Preserve

  • What triggers the duty to preserve?
  • Who has a duty to preserve?
  • What is the scope of the duty to preserve?

[More ...]

Litigation Hold Notices

As soon as litigation is reasonably anticipated, businesses or their counsel should send letters notifying relevant persons that they must preserve documents and data regarding the dispute, and the business should also implement appropriate procedures to ensure the documents and data are actually preserved. [More ...]

Potential Sanctions

Courts have discretion in determining the appropriate sanction for spoliation, and they evaluate numerous factors in making this decision. [More ...]

Counsel Can Help

The best time to prepare for litigation holds and preserving evidence is before litigation. Polsinelli's commercial litigation attorneys can work with clients to develop a litigation and document preservation plan. Even if a business is not subject to pending or threatened litigation, working with counsel in advance is one of the most effective strategies to control the cost of litigation. If litigation is anticipated or ongoing, Polsinelli can also help clients quickly and effectively enact a litigation hold, suspend document destruction and deletion policies, sequester and collect relevant documents and data, and deal with spoliation disputes.

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