Under the Federal Rules of Civil Procedure, whenever it can be “reasonably anticipated” that an action will be filed, all parties have a duty to preserve potentially relevant evidence. And “evidence” includes all information, including not just hard copy documents but all electronically stored information. Research the Federal Rules of Civil Procedure and Federal Rules of Evidence.
Your supervising attorney, Jack Jones, has asked you to write a Legal Memorandum detailing the law firm’s obligation to preserve evidence in each client’s case. Specifically, he would like to know (1) what types of information are required to be preserved; (2) when does the duty to begin preserving evidence start; (3) what steps are required of the law firm to preserve evidence; and (4) what are the sanctions for failure to preserve evidence? He also would like you to include as an attachment to the memo, a sample letter that can be sent to clients which explains their obligation to preserve evidence and prevent spoliation.
For assistance with a Legal Memorandum, see the Legal Memorandum PowerPoint presentation
This Written Assignment is fairly straightforward. A good way to conceptualize the issue of “preserving evidence in a digital world” is to work backwards; that is, what should be done by way of policies and procedures to prevent spoliation.
- Only worry about electronic evidence. Basically email. Focus on electronic generated evidence which is generally email or document transmission over email.