Our monthly legal eDiscovery news round-up features an update on the Standard Contractual Clauses case, standardized legal activity language, and cybersecurity risks for the legal industry, as well as recent cases and new XDD educational content.
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.
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.
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.
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.
On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the eDiscovery era official. Among the rules revised was Federal Rule of Civil Procedure 37, which governs discovery failures like spoliation and the associated sanctions. Among the changes was made was the replacement of the 2006 version of FRCP 37(f) with the new 2015 version of FRCP 37(e).
Our monthly legal eDiscovery news round-up features new roles for industry leaders, new data privacy developments, and reporting on the coming battles over deepfakes, as well as recent cases and new XDD educational content.
As you approach the end of your production efforts, there are two additional steps that should be taken prior to delivery of the prepared production set(s). First, if any materials have been withheld due to privilege or work product protection, those materials will need to be documented in a privilege log. Second, for your own records, you should prepare a production history log documenting your production(s).
Now that we have reviewed the range of production formats available, the additional decisions that need to be made, and the rules and cases about who gets to make all those decisions, it’s time to review the actual preparation of the production in the chosen format. This process is typically a collaboration between members of the case team and the technical professionals responsible for administrating your chosen processing and review platforms.
Now that we have reviewed how the production format selection process is supposed to work under the FRCP, let’s take a look at some recent cases to see the disputes that arise and how courts are applying those rules in practice, including: a joint failure, a protocol deviation, a waived objection, an award of expenses, a failure to request metadata, and more.
Now that we’ve reviewed the available production formats and related options, it’s time to discuss which party gets to decide on the formats and options to be used in a typical case. Pursuant to the Federal Rules of Civil Procedure, both parties have opportunities for a say: first, in negotiations; then, through requests and objections; and finally, through motions to compel and protect.