How far back in time and how broadly do we have to preserve documents when we anticipate litigation?

There is no fixed number of years or universal cutoff. The scope of preservation is defined by relevance and proportionality, not by a calendar date. The duty is to preserve information that is reasonably likely to be relevant to the dispute you anticipate, however far back that relevant material happens to reach.

When the Duty Begins

In US civil practice, the obligation to preserve generally arises when litigation is reasonably anticipated — not only when a complaint is filed or a subpoena arrives. A demand letter, a serious threat, an internal investigation, or a known dispute can all trigger the duty. Once triggered, organizations issue a litigation hold to suspend routine deletion and disposition of potentially relevant records.

How Far Back

“How far back” is driven by the facts of the matter:

• Identify the events, transactions, or relationships at issue.
• Preserve material from the time period in which relevant facts arose, including earlier records if they bear on those facts.
• Continue preserving newly created relevant material for as long as the hold is in effect.

You are not required to preserve everything you have ever created. You are required to preserve what is relevant to the anticipated claims and defenses.

How Broadly

Scope is shaped by proportionality — balancing the needs of the case against burden and cost. Consider:

• Custodians: the people likely to hold relevant information.
• Sources: email, messaging and collaboration tools, shared drives, databases, mobile devices, and backups where relevant data uniquely lives.
• Data types: documents, structured data, and metadata.

A defensible process — identifying custodians, issuing and tracking the hold, and documenting decisions — matters as much as the volume preserved. Courts focus on reasonable, good-faith efforts.

Jurisdiction Matters

These principles reflect US federal civil litigation. State courts, regulatory matters, and other countries apply different rules, triggers, and standards, so confirm the requirements for your specific forum. Coordinating early among legal, records/IG, and IT is the most reliable way to scope a hold defensibly.

For related concepts, see e-discovery.