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Document Preservation, Discovery, McCabe v. British Australian, Sallman Report, Pre-Proceeding Duties Tobacco


This paper explores the nature, extent and boundaries of the duties that exist to preserve relevant documents where no litigation has yet commenced and where such litigation can be reasonably anticipated. It uses as the context for this discussion the recent tobacco litigation case McCabe v. British Australian Tobacco (BA T). The duties to preserve are considered from the perspectives of prospective plaintiffs, who need the documents to prove a claim; prospective defendants (and their servants, agents and employees), who may for legitimate reasons have document management policies that call for routine destruction of documents; and judges (and juries), who require evidence to discharge their fact-finding and truth-seeking functions. The paper will also briefly discuss the legislation proposed in the Sallman Report, and the effect that the proposed legislation would have on the nature and scope of pre-proceedings duties to preserve documents.


Formerly conference paper presented in August 2004.