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Episode // November 18, 2019

Reasonable Steps to Preserve ESI, Spoliation Sanctions Part 2

The amended version of FRCP 37(e) limits sanctions to situations where ESI that should have been preserved was lost “because a party failed to take reasonable steps to preserve it.” Thus, the first question raised by the amended version of FRCP 37(e) is what qualifies as “reasonable steps to preserve” ESI. Unfortunately, the rule does not elaborate, but thankfully, the Advisory Committee Notes and subsequent cases do provide some guidance.

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Episode // November 20, 2019

Intent to Deprive, Spoliation Sanctions Part 3

As we discussed, one of the things the amendments to FRCP 37(e) were intended to do was resolve a circuit split that had arisen regarding the level of culpability that must be shown for the application of severe spoliation sanctions. The amendments resolved that split in favor of the higher standard but, in so doing, created new questions about establishing intent to deprive.

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Episode // November 21, 2019

Courts’ Inherent Authority to Sanction, Spoliation Sanctions Part 4

As we discussed in the last Part, one of the primary goals of the December 2015 Amendments to the Federal Rules of Civil Procedure was to increase predictability and consistency for litigants by eliminating jurisdictional variations in ESI spoliation standards, their application, and the associated penalties. Ensuring predictability and consistency, however, would require foreclosing other alternatives for addressing ESI spoliation.

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Episode // November 22, 2019

Other Limitations on Sanctions, Spoliation Sanctions Part 5

We have discussed the major questions of what qualifies as reasonable steps, what it is a sufficient showing of intent to deprive, and whether courts can opt for inherent authority despite FRCP 37(e). Beyond those major questions, there are others, of which practitioners should be aware, that affect whether and what sanctions are imposed, including: whether there has been irretrievable loss, whether there has been prejudice, and other factors.

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