Funded by contributions from the Los Angeles and Orange County Chapters of ARMA International to the Foundation
Abstract
In 2004, the ARMA International Educational Foundation sponsored a study entitled “Legal Holds and Spoliation: Identifying a Checklist of Considerations that Trigger the Duty to Preserve” (hereafter the “2004 Study”). See above. The 2004 Study identified a duty to preserve continuum for records retention in general. It also provided parameters for triggering a “legal hold” on destruction of records subject to destruction not only under the records retention policy, but also for any other documents or information in the company’s possession at the time.
Since the 2004 Study was published, companies continue to struggle with litigation holds for foreseeable, potential or anticipated litigation, as contrasted with “pending” litigation where the company has already been served or is aware of the lawsuit being filed in court. Foreseeable, potential or anticipated litigation is a thorny case or fact-specific issue. On top of that, the revised Federal Rules of Civil Procedure, effective December 1, 2006, have made the issue a top priority. Accordingly, the purpose of this supplemental study is to survey cases that address when the duty to preserve attaches for such potential or anticipated litigation, including the all-important determination of scope (i.e., what to preserve).