2008-08-24 Pre-Litigation Duty to Preserve, Even Without Court Order - Fourth Circuit

In an August 20, 2008 decision in Buckley v. Mukasey, 2008 WL 3854498, 12 (4th Cir. 2008) the U.S. Court of Appeals for the 4th Circuit recognizes that a duty to preserve material evidence may extend to the "period before" litigation. A showing of "when" a party should know that evidence may be relevant to anticipated litigation becomes the next point of contest, and a risky one for evidence "producers."

"[W]e simply observe that (even absent a court order) “[t]he duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001)."