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Your supervising attorney, Jack Jones, has asked you to
write a Legal Memorandum detailing the law firm’s obligation to preserve
evidence in each client’s case. Specifically, he would like to know

 

I.                  
Types of information are required to be preserved

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The
information to be preserved will be relevant evidence. According to FRE 401
evidence is relevant if it has any tendency to make a fact more or less
probably then it would without the evidence and the fact is of consequence in
deterring the action. FRE 402 provides that relevant evidence is admissible an
less any of the following provides otherwise; United States Constitution, a
federal statute, the rules of the Federal Rules of Evidence, or other rules
prescribed by the U.S. Supreme Court. Irrelevant evidence is not admissible.

Therefore,
the evidence that is to be preserved will be based on the claim, case, and the
elements that must be proved for each case.

 

II.               
Duty to begin preserving evidence

Courts first
consider whether a duty to preserve evidence exists. To assess whether a duty
exists, courts may consider: the conduct, event or information that may trigger
a preservation obligation, to whom the preservation duty may extend, and the
scope of the preservation obligation. (cite web doc)

The duty to
preserve documents, electronically stored information, or tangible evidence
based on the existence of pending, threatened, or reasonably foreseeable
litigation arises under the common law. It also can arise from a number of
other sources, including a contract, a voluntarily assumed duty, a statute or
regulation, an ethical code, or another special circumstance (cite web doc)

Federal Rules of Civil Procedure (FRCP)
specifically, and addresses the current amendments awaiting final action. For
example, FRCP 26(a) and FRCP 26(b) set forth the guidelines for producing, both
spontaneously and upon request relevant and material evidence. Inherent in the
reasoning behind these rules is the requirement that in order to produce a
thing, one must first have preserved it. (cite findlaw website)

Sarbanes-Oxley
Act of 2002 imposes certain recordkeeping requirements on corporate entities
and creates penalties for failure to comply with these requirements. Among
other things, the Act requires that “any accountant who conducts an audit of
an issuer of securities to which section 10A(a) of the Securities Exchange Act
of 1934 applies, shall maintain all audit and review work papers for a period
of 5 years from the end of the fiscal period in which the audit or review was
concluded.” (cite web doc)

III.             
Steps are required of the law firm to preserve evidence

Once a party
has notice that litigation has been filed, courts uniformly impose a duty to
preserve potentially relevant evidence on parties to the lawsuit. (cite web
doc)

It is important
for parties and counsel to identify the time period, subject matter and
locations of potentially relevant information and provide litigants or
prospective litigants with a reasonable opportunity to inspect and test the
evidence before it is destroyed if evidence cannot reasonably be retained. Keep
a written record of any notice and opportunity to inspect given to a
potentially adverse party. (cite web doc)

As a law
firm there is a duty to be knowledgeable to what types of evidence a material
fact that are needed to litigate claims successfully.

Once aware
of a claim notice to clients is essential in making sure preservation is being
enforced and followed.

IV.            
Sanctions for failure to preserve evidence

Sanctions
can come in the form of monetary fines by the courts. (Akron)

Other types
of concerns would be possible malpractice claims 

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