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Tip: Duty to preserve electronically stored information exists outside FRCP

EHR Connection, September 15, 2008

The e-discovery amendments to the Federal Rules of Civil Procedure (FRCP), which govern civil proceedings in federal courts, adapt existing rules and concepts to electronically stored information—but they don’t attempt to delineate the timing or scope of the duty to preserve it.
 
Instead, this duty may arise from common law, statute, rules, agency decisions applicable to clients in regulated industries, or court order.
 
A common law duty to preserve evidence can and does arise before litigation. The most common formulation of the standard is that a duty to preserve arises when litigation is reasonably anticipated, such as when:
  • A party receives a demand or preservation letter from opposing counsel prior to suit
  • A party threatens litigation or litigation has commenced in a substantially similar matter
  • A notice of default is issued under a contract
  • An employee is terminated under circumstances likely to give rise to a claim 
Note that this list is not exhaustive. Also, the duty to preserve evidence unquestionably arises when suit is filed.
 
Sanctions for spoilation of evidence include:
  • Substantial fines
  • Adverse inference instructions to a jury
  • Exclusion of evidence
  • Shifting of the burden of proof
  • Dismissal of a claim 
This tip is the last in a series from The Practical Guide to Release of Information published by HCPro, Inc. Check previous issues of EHR Connection for more information about the e-discovery rules.

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