In light of the Zubulake decision and its progeny, most companies and attorneys involved in litigation now understand that they have a duty to preserve electronically stored information (ESI) once litigation is reasonably anticipated. Traditionally, this encompassed counsel’s duty to advise her client of both the type of potentially relevant information and of the necessity of preventing its destruction. Recent decisions, however, have found that both counsel and the client are responsible for ensuring the proper preservation of ESI. To avoid problems, both the lawyer and the client need to ensure that an adequate legal hold process is in place.
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