Preserving ESI in N.J. Federal Court

Even in the digital age, discovery obligations have not changed: preserve and produce all relevant, nonprivileged information. But, wait too long to preserve documents -- including electronically stored information -- and the stakes are high: e.g.,dismissal of claims, judgment in favor of a prejudiced party, evidence suppression, spoliation adverse inference, deeming facts admitted, striking privilege claims or trial witnesses, fines and/or attorneys' fees and costs.

With such costly sanctions, companies and their counsel in this jurisdiction must recognize that the federal standard regarding when document-preservation obligations are triggered often translates to "sooner than you think." And they must know where some of the unlikely ESI caches may be lurking.

WHEN PRESERVATION DUTIES BEGIN

The 2006 Advisory Committee Notes to FRCP 37(f) point out that "[a] preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case." Issuance of "litigation holds" to company personnel is one aspect of the e-preservation obligation. Unfortunately, "[t]he exact moment of when the duty to impose a 'litigation hold' is vague." Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm., 2010 WL 2652412, at *1, 3 (D.N.J. July 1, 2010).

Common-law evidence-preservation duties arise in a variety of ways prior to litigation, based on the jurisdiction. In the District of New Jersey, "[t]he duty to preserve evidence arises when a party reasonably believes that litigation is foreseeable and, as such, may arise many years before litigation commences." Medeva Pharma Suisse A.G. v. Roxane Lab 2011 WL 310697 (D.N.J. Jan. 28, 2011). "While a litigant is under no duty to keep or retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation." Sanofi, at *1, 3.

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Source: law.com
By: Kristin E. Polovoy