Changes for ESI Preservation and Spoliation

Some background: in 2006, the Federal Rules of Civil Procedure rule-makers developed and put into practice amendments dealing with electronically stored information (ESI) and e-discovery. Great, except that most of those involved believed the amendments didn’t adequately deal with lost or missing ESI or “the spoliation issue.” So, in 2014, the rule-makers proposed Rule 37(e), which deals with the issue of spoliation equally across all federal courts, resolving the issue of inherent authority, or judges making decisions individually for each case.

That begs the questions: What are these changes and how will they affect the way businesses deal with e-discovery and data preservation?

To answer that, The Digital Detectives, Sharon Nelson and John Simek, interview ESI preservation expert James Kurz. They discussion how Rule 37(e) works and what the consequences are for the future of ESI preservation. Kurz explains that the rule, which only deals with ESI, proposes a three part test before considering spoliation issues:

  1. The ESI should have been preserved in the anticipation or conduct of litigation and is lost,
  2. The ESI was lost because the party failed to take reasonable steps to preserve the information, and
  3. The missing information cannot be restored or replaced with additional discovery.

If this test is passed, the federal court may then impose remedies, or if intention is proved, order more serious sanctions. He explains that Rule 37(e) will make a more homogenous legal process for e-discovery, and will solve some of the controversy surrounding the costs of ESI preservation and e-discovery for businesses. Although the rule faces the Judicial Court, Supreme Court, and then

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