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Partners in Preservation

By David Cohen and Brad Harris
June 28, 2011

Some outside counsel historically have felt that their clients' duty to preserve evidence rests primarily with those clients. The all-too-common practice was to fire off a memo to the client with some general guidance and then check it off the “to do” list. It was left up to the client to make sure proper steps were taken from there.

If that was ever a safe or defensible process, those days are long gone. Preservation is in the spotlight after a series of important decisions came down on the federal level in 2010. We'll touch on the cases specifically, but the takeaway is that the standard has been raised. While preservation is a well-established concept, the added complexities surrounding electronic information and data have changed the dynamic. It isn't that the preservation obligation is new ' it's just much easier to make mistakes and get into trouble than it used to be.

Today, outside counsel share the responsibility for ensuring that reasonable steps are taken to identify, preserve, collect and produce potentially relevant information. Rather than staying at arm's length from the issue, now outside counsel should be well versed in the issues and ready to roll up their sleeves to assist.

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