The Problems of Preservation: How Much Evidence is Too Much?

In today’s digital age, businesses create seemingly infinite quantities of data. And when the mere prospect of litigation looms, current rules require businesses to assume significant costs to store and maintain any data that might be relevant to that litigation. This seemingly boundless duty to preserve, unmoored from our legal traditions, all but abandons the common law of discovery.At common law, the duty attached only upon the filing of a suit (or when filing was imminent), and generally required only that parties not destroy evidence directly related to litigation. But today’s duty casts aside these originalist common-law pillars—the duty not only attaches earlier, but is broader in scope. What’s more, recent judge-made preservation obligations make obtaining spoliation sanctions far easier by removing the common-law requirement that the spoliator acted in bad faith. Such a broad duty and simple path to sanctions has led, predictably, to over-preservation, placing significant burdens on corporate litigants.This teleforum dives into this topic, and will discuss whether courts have strayed too far from the historical common law, changing the traditional balance and equity in discovery. Featuring: Michael Buschbacher, Counsel, U.S. Department of JusticeSuzanne H. Clark, Discovery Counsel, eDiscovery CoCounsel, pllcRobert Keeling, Partner, Sidley Austin LLP Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.