April 19, 2018 Articles

Best Practices in Dealing with Spoliation, Preservation, and Privilege

The importance of having a preservation plan in place, a litigation hold letter ready to go, and the Rules of Professional Conduct always in mind

by Jeanne Schubert Barnum

When a construction client is faced with an investigation under the False Claims Act (FCA) or the Foreign Corrupt Practices Act (FCPA) or with any threatened or actual litigation, the client will be prepared if in-house counsel and outside counsel already have in place a preservation policy that is followed by the client’s employees. Counsel should also be prepared by understanding who the “client” is and how to preserve attorney-client privilege when investigating a claim. No attorney wants to be faced with a spoliation claim or an attack on attorney-client privilege. Preparation is key to avoid both.

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