The Duty to Preserve: Lawyers Beware! - NR&E | Winter 2011
In the electronic world, the duty to preserve can create jeopardy for litigants. Every employee is a file keeper and with the stroke of a key can delete information material to the pursuit or defense of a claim. Courts have taken opposite positions on when demand letters create a duty to preserve and how much knowledge, what type of knowledge, and who must possess the knowledge before a preservation duty arises. Because culpability standards—negligence, gross negligence, or bad faith—in the circuits vary, similarly situated litigants may be treated differently depending upon the venue. Hence environmental lawyers addressing notices of violation, records preservation clauses in a consent order, information requests, or notice letters must pay attention to this mosaic of case law to protect the interests of their clients.