publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/792924
LITIGATION AND PRACTICE SUPPORT 31 WWW.ILTANET.ORG | ILTA WHITE PAPER It has been a lile over one year since the most recent revisions to the Federal Rules of Civil Procedure (FRCP) were enacted. This is the second set of amendments to the FRCP that address the discovery process in the era of big data, the first set being significant changes in 2006 that introduced us to electronically stored information (ESI), electronic discovery and, for many of us, our careers. This second set of amendments was draed to address several emergent issues in discovery, including the high cost and inconsistencies in when and how to impose sanctions for failure to preserve. In the year since the amendments went into effect, we've seen several clear trends: an emphasis on proportionality and a greater reluctance to shi costs and to impose sanctions. The most significant aspects of the changes had a direct effect on electronic discovery and to those of us who practice in this field. Failure To Preserve ESI Perhaps the most anticipated change to the federal rules was the revision to Rule 37(e), which addresses failure to preserve ESI. The revised rule was, in part, intended to provide a greater definition for courts and parties as to when sanctions might be applied for the loss of electronically stored information. In 2016, sanctions were denied in several cases where, prior to the 2015 amendment, sanctions may have been imposed. One such example is the Living Color case (Living Color Enters., Inc. v. New Era Aquaculture, Ltd., 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)). This is a case in which the plaintiff sought terminating sanctions or an adverse inference instruction to the jury for the defendant's failure to preserve discoverable text messages (it is well- by Caroline Sweeney of Dorsey & Whitney LLP and Joan Washburn of Holland & Knight 2015 Revisions to the Federal Rules of Civil Procedure: What They Mean to Us One Year Later 2015 Revisions to the Federal Rules of Civil Procedure: What They Mean to Us One Year Later