Once the duty to preserve evidence has been triggered, the scope of the preservation obligation is the next issue for an organization to consider. Although there are guidelines from case law discussing the scope of the preservation duty, the cases are not consistent across the states, the federal circuits or even in individual district courts. As a result, organizations vulnerable to litigation in more than one jurisdiction, “cannot look to any single standard to measure the appropriateness of their preservation activities, or their exposure or potential liability for failure to fulfill their preservation duties,” according to the decision in Victor Stanley, Inc. v. Creative Pipe, Inc.
Since a national organization cannot effectively operate with a different preservation policy for each state and federal circuit, how does an organization respond to a preservation trigger? The only “safe” way to respond is to design a policy or response protocol that will satisfy the most demanding requirements of courts that have addressed the issue, even though that may impose burdens and expenses that exceed what is required in other jurisdictions in which they conduct business activities.