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When Should Records Be Retained or Destroyed ' or Not?
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.
Aside from the significant logistical issues in implementing litigation-hold protocols, inconsistencies in the case law have created major legal uncertainties on important questions such as:
- When is litigation 'reasonably anticipated' (the so-called 'trigger' issue)?;
- What is the scope of the duty?; and
- What steps must be followed to fulfill the preservation obligation (so-called 'implementation' issues)?
The Sedona Conference (http://www.thesedonaconference.org/) has established a special project team of its working-group series specifically to study and debate these issues and, it hopes (as do others), to issue guidelines on best practices for implementing litigation holds. The group may issue a draft for public comment before the end of the year.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Warehouse Liability: Know Before You Stow!
As consumers continue to shift purchasing and consumption habits in the aftermath of the pandemic, manufacturers are increasingly reliant on third-party logistics and warehousing to ensure their products timely reach the market.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.