Answer to Question 1
Spoliation is the destruction of evidence pertaining to litigation. Spoliation may include deleting electronic files or information. The legal team should advise a client to put in place a procedure that will allow the destruction of records in a way that avoids claims of spoilation. Record retention is the practice of retaining documents for a certain period of time.A record retention policy should have a litigation hold policy. The length of time a record is retained may depend on many factors, including: 1 . government regulations; 2 . the need to defend litigation; 3 . reasonable belief in the pendency of litigation. This policy will determine what matters may result in litigation, and what documents related to that litigation should be retained. The attorney has an affirmative duty to instruct the client to cease further action destroying documents and to follow up and verify that the client has followed the instructions.
Answer to Question 2
The large volume of documents makes it difficult to conduct a screening for confidential or privileged materials. In traditional discovery, every document was first reviewed by the client and then the legal team before being produced in response to a discovery request. That is impossible because of the number of documents produced through electronic discovery. The obligation remains to protect the confidential and privileged materials. This is done with search engines using words and phrase to search for protected documents.
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