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Journal of Technology Law & Policy

Document Type

Article

Abstract

This Article seeks to provide a road map to reasonableness in determining when the duty to preserve is triggered and, to that end, identifies and catalogues various trigger points from the 106 state and federal decisions we identified as involving a judicial analysis of when a party reasonably anticipated litigation in the context of spoliation allegations or issues of preservation efforts. This empirical analysis confirms the common-sense conclusion that the duty to preserve frequently triggers long before service of process, sometimes by a period of several years or more, yet remains unpredictable and highly fact-specific.

Part I of this Article details the genesis of the common law duty to preserve evidence from its Dickensian origins. Part II provides an overview of the common law duty to preserve in the present and catalogues various judicially-identified trigger events, as well as an analysis of alternative proposals championing bright-line preservation rules. Part III discusses the nuts-and-bolts of the implementation of a litigation hold in the information age. In Part IV, we review the consequences of failing to get preservation right, discussing the myriad of potential sanctions available to the court to remedy a party’s breach of a duty to preserve.

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