Answer to Question 1
Discovery is impacted by Rule 1.6 of the MRPC, which requires lawyers to preserve client confidences. In discovery, this requires attorneys to review all documents being produced to determine whether any of it should be withheld.
Answer to Question 2
arises if the party knows or should have known of the possibility of litigation. Preservation may require placing a matter and all documents related to it on litigation hold. This term serves as a red flag to the company and its employees not to destroy or alter any documents related to the dispute, and to save them in their present forms. When litigation is filed, or when there is a reasonable expectation of litigation, the individual or company must cease any activity that will result in the destruction or loss of records. When litigation is actually commenced, counsel must issue a litigation hold letter to the client. Court opinions have held that lawyers have an affirmative duty to follow up with the client to ensure that the litigation hold procedures are implemented and followed. This burden applies to both inside and outside counsel.
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