Thursday, August 12, 2010

Panel of Judges and Practitioners Propose Federal Rule Governing Preservation and Spoliation

ABA's Litigation News contains an article entitled "Is It Time for a Federal Rule on Preservation?" and discusses an proposal by judges and practitioners who served on a panel at the 2010 Civil Rules Advisory Committee Litigation Conference at Duke.

According to the article, the elements of the proposal include:

- general and specific triggers for attachment of the obligation to preserve information, including electronically stored information;
- the scope of the preservation duty, including both time frame and the types of covered data and data sources;
- the form or format in which data subject to preservation should be maintained;
- limitations and guidance for determining the individual database users and data custodians for - whom detailed data must be captured and preserved;
- preservation standards applicable to non-parties;
- limitations as to the duration of preservation duties and their applicability to post-suit records and data;
- the contours of a safe harbor for organizations utilizing formal litigation hold procedures;
- the extent to which internal efforts to ensure and accomplish proper preservation should be protected as work product; and
- the consequences and related procedural requirements applicable in instances of alleged breaches of the preservation duty.

The proposal is available here.


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