online prescription solutions
online discount medstore
pills online
buy lorazepam without prescription
xanax for sale
buy xanax without prescription
buy ambien without prescription
ambien for sale
buy modafinil without prescription
buy phentermine without prescription
modafinil for sale
phentermine for sale
lorazepam for sale
buy lexotan without prescription
bromazepam for sale
xenical for sale
buy stilnox without prescription
valium for sale
buy prosom without prescription
buy mefenorex without prescription
buy sildenafil citrate without prescription
buy adipex-p without prescription
librium for sale
buy restoril without prescription
buy halazepam without prescription
cephalexin for sale
buy zoloft without prescription
buy renova without prescription
renova for sale
terbinafine for sale
dalmane for sale
buy lormetazepam without prescription
nobrium for sale
buy klonopin without prescription
priligy dapoxetine for sale
buy prednisone without prescription
buy aleram without prescription
buy flomax without prescription
imovane for sale
adipex-p for sale
buy niravam without prescription
seroquel for sale
carisoprodol for sale
buy deltasone without prescription
buy diazepam without prescription
zopiclone for sale
buy imitrex without prescription
testosterone anadoil for sale
buy provigil without prescription
sonata for sale
nimetazepam for sale
buy temazepam without prescription
buy xenical without prescription
buy famvir without prescription
buy seroquel without prescription
rivotril for sale
acyclovir for sale
loprazolam for sale
buy nimetazepam without prescription
buy prozac without prescription
mogadon for sale
viagra for sale
buy valium without prescription
lamisil for sale
camazepam for sale
zithromax for sale
buy clobazam without prescription
buy diflucan without prescription
modalert for sale
diflucan for sale
buy alertec without prescription
buy zyban without prescription
buy serax without prescription
buy medazepam without prescription
buy imovane without prescription
mefenorex for sale
lormetazepam for sale
prednisone for sale
ativan for sale
buy alprazolam without prescription
buy camazepam without prescription
buy nobrium without prescription
mazindol for sale
buy mazindol without prescription
buy mogadon without prescription
buy terbinafine without prescription
diazepam for sale
buy topamax without prescription
cialis for sale
buy tafil-xanor without prescription
buy librium without prescription
buy zithromax without prescription
retin-a for sale
buy lunesta without prescription
serax for sale
restoril for sale
stilnox for sale
lamotrigine for sale

Will the Newly Proposed Amendment to Rule 37(e) Provide a True “Safe Harbor”?

A lawyer’s greatest fear is sanction by a court.  This fear is justifiable because sanctioned lawyers become “toxic” to employers and clients even if the sanctions are later vacated, as in the Qualcomm case.  Sanctions related to electronic discovery (“e-discovery”) have become a hotly-debated topic in the last few years because the number of sanctions has increased dramatically.  In November 2012, the Advisory Committee on Civil Rules proposed an amendment to Rule 37(e) of the Federal Rules of Civil Procedure, which governs failure to produce information during e-discovery, that is designed to alleviate the problem of too many sanctions.

 

Problems with the Current Rule 37(e)

The rapid growth of electronically stored information (“ESI”) is at the root of the problem of too many sanctions.  To illustrate, the total volume of digital information created increased from 130 exabytes (EB; 1 EB=1 billion gigabytes) to 1227 exabytes in 2010.  And it keeps growing.  For example, enterprise data is estimated to double every three years.  The increasing volume of ESI makes it too costly to preserve everything. But knowing when the preservation obligation is triggered and what information must be preserved is difficult.  Because of this, even litigants acting in good faith may find themselves in trouble.  The failure to preserve ESI was the most common misconduct that led to sanctions in e-discovery cases.

Rule 37(e) was added to the Federal Rules in 2006 to protect litigants acting in good faith from sanctions for failure to preserve.  Although Rule 37(e) is called a “safe harbor” provision, it fails to provide satisfactory protection.  This is because the Rule’s protective language is unclear and can be interpreted narrowly.  Consequently, the rule is applied inconsistently across jurisdictions and between individual judges.  Litigants cope with this situation by adhering to the most strict standards to avoid potential sanctions in later litigation.  For example, Microsoft reported in 2011 that it preserves 787.5 GB of data for every 2.3 MB of data that are actually used in litigation, which is a ratio of 340,000 to 1.

Unsurprisingly, the phenomenon of over-preservation drives the cost of litigation above what is necessary, placing an undue burden on organizations that face frequent litigation.  The ambiguity of law has also led to increased sanctions motions for spoliation, or the act of destroying or altering evidence, shifting the focus away from the merits of the case and often resulting in settlement amounts disproportionate to the underlying merits.

 

The Proposed Amendment to Rule 37(e)

The Discovery Subcommittee of the Advisory Committee on Civil Rules proposed an amendment last November as a solution to these problems.  According to its drafters, the amendment provides better protection than the current rule and sets a uniform national standard regarding sanctions for failure to preserve.

Subdivision (e)(1) provides a variety of measures that courts can use instead of sanctions, such as “additional discovery” and “curative measures.”  These measures encourage courts to be more flexible rather than rely heavily on sanctions.  Another subdivision, (e)(2)(A), sets the uniform standard of culpability that requires that “the failure [to preserve be] willful or in bad faith.”  This standard of culpability essentially rejects the negligence or gross negligence standard set by the 2nd Circuit.  Under this provision, the court must also find “substantial prejudice in the litigation” in addition to willfulness or bad faith before imposing sanctions.  Subdivision (e)(2)(B) of the amendment creates a narrow exception allowing for sanctions in the absence of willfulness or bad faith, but only when the loss of information “irreparably deprived a party of any meaningful opportunity to present a claim or defense.”  Finally subdivision (e)(3) of the amendment gives a non-exhaustive list of factors to consider when determining whether there was willfulness or bad faith.

Reactions to the proposed amendment vary.  Many critics agree with the drafters that the proposed amendment to Rule 37(e) expands the protection under the current “safe harbor” rule.  However, many also question whether the additional protection will do enough to solve the problem.  Critics have identified a number of issues regarding proposed amendment, including its failure to give clear guidance in construing core concepts such as “reasonable anticipation of litigation” and “irreparably deprived.”  Subdivision (e)(2)(B) of the amendment, though purporting to be a very narrow exception, still makes it possible for courts to bypass the requirements under subdivision (e)(2)(A), which would weaken the protective effect.  Additionally, the factors listed in subdivision 37(e)(3) are a potential source of confusion, as even the drafters themselves could not reach consensus on them.

 

Will It Solve the Problems?

The proposed amendment to Rule 37(e) arguably provides more protection than the current rule.  However, we have to wait to see the extent to which the amendment solves the over-sanctioning problem because its success will depend on the courts’ interpretation.  Further, other unpredictable factors, such as its effect on plaintiffs in manufacturing defect cases, can also lead to complications that increase or decrease the effectiveness of the new Rule.  In the meantime, lawyers would be well advised to look to the Sedona Conference for guidance in the e-discovery area, as it is an often cited authority in the court opinions.

 

About the Author

Jay Lee

Jay Lee is a Staffer for the Columbia Science and Technology Law Review. He is a 2L at Columbia Law School.
  • http://www.ediscoveryreporter.com/2013/07/08/is-this-the-end-of-sanctions-for-negligent-spoliation/ Is this the end of Sanctions for Negligent Spoliation?

    [...] opinion issued in Seksui briefly discussed a proposed amendment to Fed. R. Civ. P. 37(e) that would preclude sanctions for merely negligent destruction [...]

  • http://bergersingerman.com/ediscovery/2013/07/is-this-the-end-of-sanctions-for-negligent-spoliation/ Is this the end of Sanctions for Negligent Spoliation? | Berger Singerman – E-Discovery Reporter

    [...] opinion issued in Seksui briefly discussed a proposed amendment to Fed. R. Civ. P. 37(e) that would preclude sanctions for merely negligent destruction [...]

blog comments powered by Disqus