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Spoliation Liability
Failure to preserve Electronic Documents Leads to Spoliation Penalties.
See United States v. Philip Morris USA, Inc., 2004 WL 1627252 (D.D.C. July 21, 2004):
- Court entered Preservation Order on 10/19/99
- "Despite this Order, [Philip Morris deleted email] which was over sixty days old, on a monthly systematic basis for at least two years after October 19, 1999"
- "It is essential that such conduct be deterred, that the corporate and legal community understand that such conduct will not be tolerated..Philip Morris...will be required to pay monetary sanction of $2,750,000"
- At Least 50 Reported Cases
- See Zubulake v. UBS Warburg LLC, et al., 2004 WL 1620866 (S.D.N.Y. July 20, 2004):
- Sanctions issued because "UBS failed to preserve relevant e-mails, even after receiving adequate warnings from counsel, resulting in the production of some relevant e-mails almost two years after they were initially requested, and resulting in the complete destruction of others."
- Judge Scheindlin announced negative inference jury instruction, and required UBS to pay for re-depositions of certain witnesses, to pay for the restoration and production of certain data from back-up tapes.
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