How Early Does the Duty to Preserve Arise in Litigation?

The U.S. Court of Appeals for the Federal Circuit, in two concurrently issued opinions, addressed one of the most high-profile accusations of spoliation in recent years and considered whether a plaintiff's destruction of a massive collection of documents prior to litigation warranted the ultimate sanction of dismissal.

Although the conduct at issue in these cases was extreme, the circuit's analysis provides important guidance with respect to the document preservation duties of any party preparing to bring, or to defend, a lawsuit in federal court.

The two decisions -- Hynix Semiconductor Inc. v. Rambus Inc. and Micron Technology Inc. v. Rambus Inc.[FOOTNOTE 1] -- examined district court decisions from California and Delaware that reached opposite conclusions concerning spoliation of evidence on essentially the same facts.

Central to both cases was a question that has become especially vexing for courts and litigants alike in an era of rapidly evolving and expanding e-discovery obligations: When does the duty to preserve evidence in advance of litigation arise? The Federal Circuit's answer, which is an attempt to give more concrete meaning to the "reasonably foreseeable" standard that nearly all courts apply in this context, underscores the importance of implementing appropriate document preservation measures at the earliest stages of litigation planning.

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Source: law.com
By: H. Christopher Boehning and Daniel J. Toal