• Potential litigants have a duty to preserve information that is potentially relevant to the lawsuit.documents in fire - 1 image by Igors Leonovs from Fotolia.com
  
  In the early part of a lawsuit, opposing parties are required to share information relative to the case. This is called discovery. Litigants may use discovery tools to force opposing parties to release pertinent information, including documents. Therefore, once a party knows a lawsuit is imminent, they have a duty to preserve any and all information and documents related to the matter at issue.
  
  

Scope of Discovery

• Rule 26(b)(1) of the Federal Rules of Civil Procedure governs the scope of what is discoverable and says, "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter..." Information may be discoverable even if it is not admissible at trial as evidence; it is the duty of the potential litigant to preserve any potentially related material.
  
  

Relevance of Information

• The relevance standard is one of a matter of degree. Some information may be only marginally relevant but still useful in preparing a case. There is no set standard of relevance, so any disagreement between the parties regarding what is relevant to the case is often left to negotiation between the lawyers of the opposing parties with the ultimate decision resting with the court. However, the party opposing the material may use a protective order under Rule 26(c) barring the production of disputed information, but the party must still preserve the information sought and acknowledge its existence.
  
  

Types of Documents

• Since most discoverable information comes in the form of documents, litigants are expected to preserve any documents that might have any relationship with the case; this can include official company documents as well as correspondence between company officials. In 2007, Congress passed an amendment to the Federal Rules of Civil Procedure that included the word "intangible things" into the scope of discoverable information to include emails. Companies that are involved in litigation, therefore, are expected to have in place a system for preserving and retrieving email correspondence.
  
  

Preservation Timeline

• Given these guidelines, a litigant, or even a potential litigant, must actively preserve any information potentially relevant to an upcoming trial. There are no specific guidelines regarding how far in advance in anticipation of a trial a party must make an effort to preserve such information. The general rule of thumb is that once a lawsuit seems possible, the potential litigant, such as the defendant, will be expected to save the information, so even well before the filing of a complaint. According to Rule 26(b)(5), "the producing party must preserve the information until the claim is resolved," or the conclusion of the case.