Spoliation

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Suppose you discover that the company's regular program of recycling backup tapes after three years was not discontinued as it should have been in response to the preservation order. When the order was issued, the general counsel sent out email and voicemail to all relevant department heads saying that all backups should be preserved until further notice, but, in one department, the backups did not get preserved until four months later. When deposed, the relevant IT person said he missed the message. As a result, four months of backup tapes have been destroyed.

1. Is either defense counsel or corporate general counsel in any way put personally at risk by this? What possible sanctions does the company face? What is the likelihood of sanctions being imposed?

2. Suppose that this litigation has ended and that nothing in this litigation related to events or documents prior to 1993. Suppose, further, that in the course of this litigation you have become aware that the company initiated its retention program with respect to electronic records only in 1992 (reusing backup tapes in a three-year rotation), and that backup tapes dating from 1975 to 1992 belonging to the company are stored at an off-site storage location. The purpose of making these tapes was to enable recovery from system crashes; the company does not know what is on these stored tapes and can't find out unless the tapes are remounted into active memory and then read with the software that created the data. The company, for the most part, no longer has this software. What should the company do?

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