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the first question is is when do you have an obligation to preserve and the court has clearly said that if you have this distinct possibility of litigation you have a duty to preserve evidence then the next question is all right who has to preserve it im john walsh past president of the state bar 1989 im with the firm of axley reynoldson in madison this morning i was presenting a program on exfoliation of evidence the destruction of evidence exfoliation meaning alteration destruction and even concealment of evidence in the last number of years ive just seen an increasing number of cases where theres destruction or the evidence has disappeared somebody claims they cant find it the first question is is when do you have an obligation to preserve and the court has clearly said that if you have this distinct possibility of litigation you have a duty to preserve evidence then the next question is all right who has to preserve it well clearly the client and the lawyer has to advise the