Page 10 - Civil Litigation

to assist with civil litigation proceedings. The litigants and third parties may change during the litigation
process.

Chart l: Overview of Civil Litigation Process

The phases and activities of the civil litigation process are described in the following sections.

Dispute Phase

A dispute may arise over differing views of facts, claims, or allegations between parties to a transaction,
relationship, or issue. When one party (plaintiff) alleges it suffered harm as a result of the actions, or
failures to act, or contrary to another party (defendant), the dispute may escalate into one of a number of
formal dispute resolution processes. The disputing parties must preserve potentially relevant records
when it is anticipated that litigation will occur. fn 6

Precomplaint Phase

Prior to filing a civil complaint, the disputing parties typically gather information related to the disputed
fact, claim, or allegation in the ordinary course of trying to resolve differences. When the dispute esca-
lates, the future plaintiff can use this information to prepare a formal written complaint. The future de-
fendant, on the other hand, may attempt to use the information gathered on its own account to refute
claims or identify possible defenses. During this prelitigation phase of the dispute resolution process, the
disputing parties may engage in formal or informal negotiations, information exchange, discussions, or
conferences to resolve the matter. Voluntary contractual arbitration or mediation may also be a part of
the pretrial process.

fn 6 A formal litigation hold communication may be required to suspend existing document retention and destruction pol-
icies and practices, together with other actions. Often referred to as "Zubulake" duties, litigation hold communications
alone may not be satisfactory to meet the preservation duty, therefore counsel from an attorney is typically required. See
Zubulake v. UBS , 229 F.R.D. 422 (S.D.N.Y. 2004) and Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007
WL 68400 (D.Colo. March 2, 2007).

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