This is the third installment in a series of articles aimed at helping organizations implement an effective written litigation hold. This article covers step 3: define the scope of the legal hold.

The universe of documents and records to preserve by a litigation hold is commonly referred to as the “portata” of a litigation hold. The scope of a litigation hold should include documents and records, including ESI, that are relevant to the facts and circumstances giving rise to the need for a legal hold. In altre parole,, the scope of a litigation hold is directly related to the trigger event. Per esempio, in a commercial landlord-tenant dispute the scope of a litigation hold may include the lease, written modification of the lease, rent bills, correspondence related to the lease, and e-mails about the lease. The scope of materials related to a trigger event is guided by past litigation involving similar trigger events or court cases on point with the trigger event that analyzed the scope of documents relevant to the trigger event. The scope can also be guided by the specific preservation demands of a potential claimant, if the preservation demands could be deemed reasonably related to the trigger event by a court.

An organization has a duty to preserve documents and records that it “knows, or reasonably should know, will likely be requested [by an opponent] in reasonably foreseeable litigation.” Mosaid v. Samsung, 348 F.Supp.2d 332, 333 (DNJ. 2004). The duty to preserve evidence “does not extend beyond evidence that is relevant and material to the claims at issue in the litigation.” Hynix Semiconductor Inc. in. Rambus Inc., 2006 WL 565893, *27 (N.D.Cal. Giovanni. 5, 2006).

What is “pertinente” is a legal term. A definition is contained in the Federal Rules of Evidence:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. “Federal Rules of Evidence,” Regola 401.

The standard for discovery in civil litigation requires the parties to exchange information that is “reasonably calculated to lead to the discovery of admissible evidence.” In altre parole,, the parties are to exchange relevant information. Guided by these legal principles an organization implementing a litigation hold needs to determine what is relevant to the facts and circumstances that gave rise to the legal duty to preserve evidence. This topic was recently examined in Goodman v. Praxair Services, 2009 Stati Uniti. Dist. LEXIS 58263 (Luglio. 7, 2009).

attraverso Law.com – Passo 3 per i legali Tiene: Definire l'ambito.