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Michael C. Miller is a litigation partner with Steptoe & Johnson LLP, New York City. Jeffrey M. Theodore is a litigation associate in the firm’s Washington, D.C., office.
We have all heard the nightmare scenarios. The government serves a subpoena on a company in connection with a new regulatory investigation, and while counsel is being retained to handle subpoena compliance, a senior executive starts deleting potentially troubling emails. Or just days before a corporate employee is scheduled to testify at his deposition in a large commercial dispute, he remembers that he has a box under his desk at the office and a thumb drive at home—both containing documents relevant to the litigation that no lawyer has reviewed. Or it turns out that the new French subsidiary of your rapidly expanding multinational corporate client, which is embroiled in a sweeping antitrust lawsuit, has not fully implemented corporate polices for document retention.
In a world where meaningful sanctions can readily flow from a failure to preserve documents relevant to a lawsuit, these sorts of nightmare scenarios do keep lawyers awake at night. Indeed, the Federal Rules of Civil Procedure contain an entire provision—Rule 37—dedicated to sanctioning counsel and clients who fail to comply with their discovery obligations. That is on top of each district court’s well-established, inherent authority to impose sanctions for discovery violations, including destruction of evidence.