A regional retailer's general counsel learns that a former employee has filed a wrongful-termination suit and that litigation is now reasonably anticipated. The company runs an email system with a 90-day auto-deletion policy that purges mailboxes nightly. To meet its obligations under the Federal Rules of Civil Procedure, what is the counsel's most immediate and direct duty regarding the relevant electronically stored information?
- AIssue a litigation hold that suspends routine auto-deletion for the custodians and data sources likely to hold relevant information. Correct
- BWait until the opposing party serves a formal discovery request before taking any action to preserve the relevant mailboxes.
- CImmediately collect and produce all potentially relevant emails to opposing counsel to demonstrate good faith.
- DMigrate all company mailboxes to a new archive platform and apply the 90-day policy uniformly going forward.
Why A is correct: Once litigation is reasonably anticipated, the duty to preserve attaches and counsel must suspend routine destruction by issuing a litigation hold to relevant custodians and systems, which is the immediate and direct preservation step.
Why B is wrong: This is tempting because formal requests do trigger production obligations, but the preservation duty attaches when litigation is reasonably anticipated, well before any request is served, so waiting risks spoliation.
Why C is wrong: This sounds proactive, but production happens during discovery on relevant, proportional material after meet-and-confer, not by dumping everything at the outset, and it does not address preservation of data still being purged.
Why D is wrong: Standardising retention may seem like sound governance, but continuing a 90-day purge would keep destroying relevant information that must be preserved, so this fails the preservation duty rather than satisfying it.