The Duty to Preserve Evidence: The High Cost of Electronic Discovery and Even Higher Cost of Non-Compliance
Lane Powell attorneys Katheryn Bradley and Laura Marquez-Garrett co-authored an article in the Fall 2012 issue of Community Bankers of Washington’s Community Banker magazine titled “The Duty to Preserve Evidence: The High Cost of Electronic Discovery and Even Higher Cost of Non-Compliance.” In the article, Bradley and Marquez-Garrett discussed the obligation to preserve evidence and how failing to do so can be costly.
Banks are subject to the constant threat of litigation on a variety of fronts — from disgruntled former employees, borrowers facing foreclosure, and regulators. While merits of each lawsuit may vary, the obligation to preserve evidence does not.
What may be surprising to many companies is that the obligation to preserve evidence arises long before a lawsuit is filed, and the costs for failing to do so can be staggering. In egregious cases, courts have entered judgment against litigants who failed to preserve, thereby preventing them from defending litigation on the merits. Litigants have also been ordered to pay the opposing party’s attorneys’ fees, which can be substantial in complex commercial litigation.