The VBA Journal is the official publication of The Virginia Bar Association.
Issue link: http://vba.epubxp.com/i/815343
8 • VBA JOURNAL LAW PRACTICE MUSINGS Electrify Your Discovery BY JOSEPH H. CARPENTER IV CHAIR, LAW PRACTICE MANAGEMENT DIVISION I recently had the good fortune to co-teach a class with Monica McCarroll of Redgrave LLP at William & Mary Law School. It was an intense, one-week course on e-discovery. Among the topics covered, I spent an entire two-and-a-half hour class on preservation requirements and the new sanctions framework under Federal Rule of Civil Procedure 37(e). At the start of the class, I asked everyone to think back five years to a situation they were absolutely certain about. I suggested thinking about a significant other at the time, a close friendship, a career choice, or even a choice of law school. I then told them to fast-forward to today and think about what they would have told their five-year-ago self about the ultimate outcome. In many cases, current knowl- edge would have led to a different philosophy. is perfect hindsight is precisely what happens in the preservation world of electronic discovery. With the 2006 Federal Rule of Civil Procedure Amendments, the concept of Electronically Stored Information, or ESI, was formally introduced. ESI has a number of unique char- acteristics and Rule 37(e) recognized this by providing that "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." As the decade that followed demonstrated, however, this rule was not sufficient to address all of the realities of ESI. In December 2015, Rule 37(e) was amended to its current version, which provides: (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 pre- sume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. A number of requirements and steps are included in the 37(e) spoliation analysis. First, a moving party must show that 1. ESI was lost, 2. Reasonable steps were not taken to preserve