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Sanctions Upheld For Failure To Preserve Allegedly Privileged Emails

In Goldmark v. Mellina, A-5918-10, the Appellate Division upheld a fine levied against a party's firm for failing to preserve emails it alleged to be privileged.  In so holding, the Court wrote that the assertion of privilege does not relieve counsel of the obligation to preserve the communications for a possible in camera inspection.

In a per curiam decision, the Court held, "Upon taking the position that relevant material is privileged or subject  to protection from discovery, a litigant has the obligation of maintaining and eventually disclosing the material as directed by the court.  See, e.g., R. 4:10-2(e)(1).  It would make a mockery of our discovery rules to allow a party or its counsel -- after identifying privileged information -- to destroy or carelessly lose or  misplace the materials in question."

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"Sellers' counsel's obligation to  preserve those documents pending the court's further direction arose at that moment, if not sooner, s​ee RPC 3.4(a), and was particularly enhanced in this case because one of the parties to those communications was terminally ill."

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