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When Should Records Be Retained or Destroyed ' or Not?

By Whitney Adams
September 01, 2006

Numerous courts have imposed sanctions on companies for negligent spoliation of documents under records-retention/destruction policies as punishment for violation of the common-law duty to preserve records when litigation is reasonably anticipated. See, E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582 (D. Minn. 2005); Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D. Md. 2005); and Zubulake v. UBS Warburg, L.L.C., No. 02C1243, 2004 WL 1620866 (S.D. N.Y. July 20, 2004) (Zubulake V).

In the aftermath of these cases, many companies have implemented litigation-hold policies to preserve potentially relevant documents.

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