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Recent corporate scandals involving the destruction or attempted destruction of e-mails and other electronic evidence have only increased fears that key evidence will disappear long before a matter goes to trial. This article examines one common solution sought by opposing counsel to combat such fears: a document preservation order at the outset of the litigation. The authors argue that although it often may seem harmless, an unbridled electronic evidence preservation order may have far-reaching and potentially drastic consequences to the business operations of a company. The authors offer several defense strategies for attorneys to minimize the inconvenience, cost and business disruption often associated with such preservation orders.
This is the fourth in a series of commentary articles entitled “Bits and Bytes of Electronic Discovery” that will appear in Mealey's Litigation Report: Discovery.