A standard of reasonableness should guide both lawyers in complying with electronically stored information (ESI) preservation duties and judges in ruling on disputes regarding the preservation of ESI. However, since there are no concrete standards governing the preservation duty, it is left to a judge's individual assessment of reasonableness. In this Emerging Issues Analysis, John K. Rabiej, chief of the Rules Committee Support Office of the Administrative Office of the United States Courts, discusses two recent cases that highlight the tensions involved in such high-stakes decision-making. He writes:
“Case law is replete with holdings requiring parties to comply strictly with preservation duties. But preserving all non-privileged . . . [ESI], especially ESI that is not reasonably accessible, like ESI on backup tapes, can be extraordinarily burdensome and costly. In recognition of the burden and the likelihood that not-reasonably-accessible ESI typically is marginally valuable, the federal rules block or temper the imposition of spoliation sanctions if: (1) the deleted ESI is not relevant; (2) the deleted ESI is available from other sources; or (3) the ESI is deleted in accordance with routine, good-faith business operations.
“Lawyers and judges are required to exercise much care when applying these three conditions in determining what ESI must be or should have been preserved. None of the three conditions sets out a bright-line test, and a ‘wrong’ assessment of any of the three conditions, which is evaluated in hindsight, can have serious consequences. The two following cases highlight some of the tensions involved in such high-stakes decision-making.
“Facts of Both Cases: In Southeastern Mech. Serv., Inc. v. Brody, 2009 U.S. Dist. LEXIS 69830 (M.D. Fla. July 24, 2009), the court denied defendant's request to impose a sanction of an adverse instruction on the plaintiff for failing to adopt an appropriate litigation hold and failing to suspend overwriting of its backup tapes. . . .
“[In] Bellinger v. Astrue, Comm'r of Soc. Sec., 2009 U.S. Dist. LEXIS 71727 (E.D. N.Y. Aug. 14, 2009) . . . the court denied the plaintiff's motion to compel a response to interrogatories and a motion to sanction the defendant for its failure to respond. . . .”
Mr. Rabiej analyzes how the facts in each case support the respective holdings and explain the apparent anomaly.
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