What is Reasonably Anticipated Litigation?

Posted by Gregg Mayer on Thursday, January 31st, 2008   

It’s a simple phrase with a lot of importance: “reasonably anticipated litigation.”

What does it mean? Once you “reasonably anticipate litigation,” then a duty is triggered for you to start preserving electronically stored information, including the hundreds of email messages your company deals with on a daily basis.

In court opinions, such as the case of Eckhardt v. Bank of America, the duty is described generally as:

(A) party has a duty to preserve evidence when the party is placed on notice that the evidence is relevant … or when the party should have known that the evidence may be relevant to future litigation.

That language means what it says. The problem is knowing when you’re on “notice” of litigation or when you “should have known” that evidence may be relevant to future litigation. The answer is: it depends on the facts of each case.

No single case out there will explain if you should “reasonably anticipate” litigation. You need to talk about it with your lawyer.

As far as understanding the concept of “reasonably anticipate,” however, a recent case nicely laid out the facts for when the defendant in a lawsuit should have “reasonably anticipated” litigation and started preserving email.

The case is Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007). In it, Peskoff, a former managing partner of a venture capital firm, brought a lawsuit against the other partner, Faber. As the court explained:

Peskoff gave notice of potential litigation against Faber in a meeting of February 6, 2004, confirmed by letter of Faber’s counsel of February 19, 2004. Peskoff filed his complaint in this case on March 31, 2004. (emphasis added)

In short, Peskoff told Faber he was going to sue in Feburary, but he didn’t actually file a lawsuit until March 31, 2004. At what point should Faber have started preserving email because he could “reasonably anticipate” litigation? The court said in February when told about the potential claims. Although there was no actual lawsuit until late March, Faber could “reasonably anticipate” he was going to be sued on February 6. The court explained:

The most recent time period commences with the notification of potential litigation by Peskoff on February 6, 2004 (affirmed by defense counsel’s letter of February 19, 2004), through the date of Peskoff’s departure and any continued activity of his email account. The Advisory Committee comments to amended Rule 37(f) make it clear that any automatic deletion feature should be turned off and a litigation hold imposed once litigation can be reasonably anticipated.

As always, discuss with your lawyer anything you think may trigger the duty to preserve evidence. Preserving email once litigation is “reasonably anticipated” will likely save money – and heartache – down the road.

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