Document Preservation

The idea of document and information preservation is not new to corporations. Several regulations impose preservation requirements on certain companies for the retention of documents and, in some cases, impose criminal penalties for their unlawful destruction. By common law, a company has the duty to preserve documents and electronic data when it “knows or reasonably should know” that information may be relevant to pending or anticipated litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Once litigation is anticipated, a party must suspend its routine document retention and destruction policy and put in place a litigation hold to preserve what it knows, or reasonably should know, is relevant to the action. See Hynix Semiconductor, Inc. v. Rambus, 2006 U.S. Dist. LEXIS 30690, *66-67 (N.D. Cal. 2006) and Samsung Elecs. Co. v. Rambus, 2006 U.S. Dist. LEXIS 50007, *96-99 (E.D. Va. 2006).

Corporate counsel must determine appropriate trigger points for the “anticipation of litigation” and develop litigation hold procedures to be implemented upon such triggers. See Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 at *23-24 (D. Co. March 2, 2007); see also Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. LEXIS 16520 at *16 (S.D.N.Y. 2005)