Digital White Papers

I L T A W H I T E P A P E R | C O R P O R A T E L E G A L D E P A R T M E N T S 8 F E D E R A L R U L E O F C I V I L P R O C E D U R E 3 7 ( E ) A M E N D M E N T : D E - R I S K I N G E - D I S C O V E R Y F O R C O R P O R A T I O N S 37(e) Failure to Preserve Electronically Stored Information If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. The amended rule also forecloses reliance on inherent authority; it recognizes the ever-emerging sources of ESI; and that ESI often exists in multiple locations. And, importantly, the rule "recognizes that 'reasonable steps' to preserve suffice; it does not call for perfection." 3 Now that all sounds nice and good, right: a legal standard that the courts may all enforce uniformly. But it is not exactly working out that way. Perhaps that is because the law seems to lag far behind the technolo and data explosion happening now—one with no end in sight to boot. Perhaps it is because courts are still grappling with how to interpret prejudice, or more importantly, how to prove intent. Courts are even contending with the question of inherent authority. So, the question begs, where are we now? Spoliation sanctions have declined by 33%. 4 The most severe sanctions are denied, and less than one out of five motions for sanctions is granted. 5 Is this the end of sanctions? And if so, how does this advance the amended rule's stated purpose? While tasked to write this article, every bone in my body screamed NO! I can't! What about the bad actors out there (and we know there still are some), what about incompetent tech players, and even the lawyers out there who are still, somehow, wrestling with this brave new (old) world of ESI? And then hope sprung. I stumbled across an insightful article written by Daniel Gold, The Next Era of E-Discovery is Already Here 6 . The author paints the picture of the evolution of the E-Discovery world: from the start of in-house platforms such as Concordance and Summation to the world where law firms and corporations now employ E-Discovery managed services in SaaS or IaaS environments with fancy tools like computer assisted learning! And thinking about Mr. Gold's article about the evolution of the E-Discovery world made me think how that evolution has closely followed the rule amendment—and past and emerging case law. No longer do lawyers have to act as IT personnel. Litigation support services are in more demand than ever. Now, "62% of attorneys prioritize tech savvy over "soft skills" when hiring." 7 We can also look to the new technolo competence rules to say that we have come a long way from where we once were. But Mr. Gold takes it a step further, arguing that the next era of e-discovery is already here – and it is in the hands of corporate legal departments. He writes, "E-Discovery is no longer a mystical and disparate part of the corporate data's lifecycle, but rather an extension of the desire to manage enterprise information so that by the time litigation does ensue, there is no longer any question about where the data is, who has the data, and the types of data. Corporate legal departments want to know they can search, collect, actively crawl, preserve, process and sift through information." 8 The new privacy laws cropping up all over the country, and the world, will advance this cause, because, well, it must. There is no other choice. Well that cheered me up. Are we there yet though? I am not sure, but I hope that we are on the right road. ESI is exploding at alarming rates, and mere data mapping might not be the best tool going forward anymore. O365 is an advancement, but key word searching just doesn't cut it anymore. ESI is everywhere, and we need the tools to do exactly what Mr. Gold proposes. So, I remain hopeful.

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