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Document Type

Article

Abstract

There are few civil procedure laws broadly authorizing trial courts in the United States to consider presuit requests seeking protection from discovery sanctions or spoliation claims in later civil actions. There should be more laws on presuit protective orders addressing information maintenance, preservation, and production.

New presuit protective order laws are most apt where there have been demands by potential adversaries involving alleged information preservation duties under civil discovery laws or under substantive spoliation laws; where the recipients have strong reasons to secure early judicial clarifications; and where the availability and use of presuit protective orders will serve both private and public interests in the just, speedy, and inexpensive determinations of civil claims. New protective order laws are also warranted for some potential witnesses in receipt of presuit information preservation demands.

An Arizona court rule, effective July 2018, authorizes presuit information preservation orders that go beyond the most common forms of presuit discovery. Yet that rule is limited and should not be fully modeled. The Arizona rule speaks only to “the existence or scope of any duty to preserve” electronically stored information (ESI). It allows those in receipt of a “preservation request” for information relevant to an expected or current lawsuit to petition for an order to determine any duty to preserve ESI. Petitioner need not be an anticipated adverse party in advance of a civil suit and need not be an anticipated new party to a pending related suit.

New laws on presuit protective orders should go further. They should authorize protective orders concerning both ESI and non-ESI. They should be available even at times when there may not be a legal duty to preserve. These new laws should, however, provide explicit guidelines limiting judicial discretion. Finally, any new laws on presuit protective orders should reflect the unique information maintenance, production, and preservation duties within a judicial system, whether in procedural (as with discovery sanctions) or substantive (as with independent spoliation claims) laws. A one-size-fits-all approach is unwarranted.

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