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NEWSFLASH: When in Doubt, Don't Throw it Out

Author: Audrey E. Gamble, Esquire

Is litigation looming in your future? If so, step away from the delete button!  When litigation is reasonably anticipated, you may (and very well likely do) have a duty to preserve evidence, which extends to the preservation of documents, emails, text messages, and other electronically stored information (“ESI”).  This duty can even arise before a lawsuit is filed. In Illinois, when evidence has been wrongly lost or destroyed, a party may be subject to sanctions for failure to take reasonable measures to preserve the integrity of relevant material evidence, and those damages can be significant.

What does this mean for you and your business? Strict adherence to responsible document retention policies are key to avoiding spoliation.  Additionally, if you are a potential plaintiff in a lawsuit, promptly issue a litigation hold notice to the opposing parties informing them that litigation may be imminent, and requesting that any relevant evidence be preserved. On the other hand, if you receive a litigation hold notice, foresee the possibility of being named in a lawsuit (either as a party or a witness), or have some other reason to expect that a lawsuit may be forthcoming, you and your employees should be sure that no relevant evidence is destroyed, lost, or deleted. To avoid costly sanctions, or even civil liability, remember: when in doubt, don’t throw it out.

For more information, please contact Robert D. Tepper, Esquire at

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Kiran Sulaiman