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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Minimum time for preservation? | 122 comments | Create New Account
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Minimum time for preservation?
Authored by: TennSeven on Tuesday, August 21 2012 @ 06:06 AM EDT
It is really a very subjective standard. A party has a duty
to implement a litigation hold (i.e., to suspend document
retention policies) as soon as it should reasonably have
been aware that such documents could be related to future
litigation.

This could be when a suing party first starts thinking about
bringing a lawsuit, or when a Defendant is first served with
the lawsuit, but it could be much earlier, say, if
circumstances were such that the Defendant should have known
that a lawsuit was likely even if the lawsuit had not yet
been contemplated by the Plaintiff. There is no bright-line
rule like "you must start retaining documents at least 6
months before filing a lawsuit;" the effective time period
is very much up to the Court's interpretation of the
arguments presented by the parties, assuming that an
argument arises.

As for Apple's retention policies, again, it is subjective.
A litigation hold does not require a party to save *all*
documents, merely documents that could be relevant to the
case, so if Apple is retaining documents relevant to
litigation, for example, concerning the Graphical User
Interface of the iPhone and involving employees A, B and C,
it is conceivable that documents authored by employees X, Y
and Z regarding video transfer protocols on Apple's latest
version of OS X are still being lost to its retention
policies.

There is also a temporal element; if Apple is involved in a
lawsuit over GUI patent infringements that allegedly
occurred between 2008 and 2010, it may not have a duty to
retain documents pertaining to the same GUI patents that are
produced *after* 2010.

That said, it is common for large companies involved in
multiple litigation proceedings to have many, overlapping
litigation holds in place, which may effectively suspend
retention policies for specific employees or departments
over the course of many years or decades as you describe.

[ Reply to This | Parent | # ]

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