What is spoilation? How may an attorney advise a client to prevent claims of spoilation? What ...

(Answer to #1)  Spoliation is the destruction of evidence pertaining to litigation. Spoliation may include deleting electronic files or information. The legal team should advise a client to put in place a procedure that will allow the destruction of records in a way that avoids claims of spoilation. Record retention is the practice of retaining documents for a certain period of time.A record retention policy should have a litigation hold policy. The length of time a record is retained may depend on many factors, including: 1 . government regulations; 2 . the need to defend litigation; 3 . reasonable belief in the pendency of litigation. This policy will determine what matters may result in litigation, and what documents related to that litigation should be retained. The attorney has an affirmative duty to instruct the client to cease further action destroying documents and to follow up and verify that the client has followed the instructions.

(Answer to #2)  The large volume of documents makes it difficult to conduct a screening for confidential or privileged materials. In traditional discovery, every document was first reviewed by the client and then the legal team before being produced in response to a discovery request. That is impossible because of the number of documents produced through electronic discovery. The obligation remains to protect the confidential and privileged materials. This is done with search engines using words and phrase to search for protected documents.

(Answer to #3)  Discovery is impacted by Rule 1.6 of the MRPC, which requires lawyers to preserve client confidences. In discovery, this requires attorneys to review all documents being produced to determine whether any of it should be withheld.

(Answer to #4)  arises if the party knows or should have known of the possibility of litigation. Preservation may require placing a matter and all documents related to it on litigation hold. This term serves as a red flag to the company and its employees not to destroy or alter any documents related to the dispute, and to save them in their present forms. When litigation is filed, or when there is a reasonable expectation of litigation, the individual or company must cease any activity that will result in the destruction or loss of records. When litigation is actually commenced, counsel must issue a litigation hold letter to the client. Court opinions have held that lawyers have an affirmative duty to follow up with the client to ensure that the litigation hold procedures are implemented and followed. This burden applies to both inside and outside counsel.

(Answer to #5)  e-discovery

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