A multi-part series reviewing decisions related to spoliation of ESI since the December 2015 amendments to the Federal Rules of Civil Procedure
In “When the Bough Breaks,” we discussed the December 2015 amendments to Federal Rule of Civil Procedure 37(e). In this part, we review available guidance on what constitutes reasonable steps to preserve ESI.
The first of the new questions raised by the amended version of FRCP 37(e) is what qualifies as “reasonable steps to preserve” ESI. The amended version of FRCP 37(e) limits the application of sanctions to situations where ESI that should have been preserved was lost “because a party failed to take reasonable steps to preserve it.”
Five Factors to Consider
Unfortunately, the rule itself does not elaborate on what qualifies as reasonable steps, but thankfully, the Advisory Committee Notes to the 2015 Amendments do provide some guidance. First and most importantly, the notes emphasize several times that, “[t]his rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.” In addition to reemphasizing this general principle of discovery, the Notes also provide a list of five specific factors that courts should consider when performing a post-hoc assessment of whether the steps taken in a given case were “reasonable”:
- The first factor is essentially the prior version of Rule 37(e), which had attempted to provide a narrow safe harbor for ESI loss:
- “As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider . . . although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation.” [emphasis added]
- The second factor is akin to a force majeure clause in a contract that allows for uncontrollable outside events, although reasonable preventative measures may still be expected of parties (e.g., maintaining backups):
- “. . . information the party has preserved may be destroyed by events outside the party’s control — the computer room may be flooded, a ‘cloud’ service may fail, a malign software attack may disrupt a storage system, and so on. Courts may, however, need to assess the extent to which a party knew of and protected against such risks.” [emphasis added]
- The third factor courts are directed to consider is the relative sophistication of the parties, particularly with regard to the likely difference in sophistication between large organizations and individuals:
- “The court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.” [emphasis added]
- The fourth factor courts are directed to consider is the relative resources available to the parties, including financial and human resources. The Notes explicitly state that less-expensive but substantially-as-effective alternatives can be reasonable:
- “The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms.” [emphasis added]
Decisions Discussing Reasonable Steps
Over the past four years, a variety of courts have had the opportunity to issue orders on motions for spoliation sanctions and to consider whether a party had taken the required reasonable steps. Here is a sampling of those cases:
- Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sep. 1, 2016) – failure to take steps “such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one” found not to have been reasonable steps to preserve [emphasis added]
- Nuvasive, Inc. v. Kormanis No. 1:18CV282 (M.D. N.C. Mar. 13, 2019) – failure to “investigate . . . what text messages his iPhone held, and  whether any setting on his iPhone might cause the deletion of existing or future text messages” and failure to “obtain appropriate advice about saving back-up copies of his text messages” found not to have been reasonable steps to preserve [emphasis added]
This collection of orders considering what qualifies as reasonable steps reveals that common preservation failures are viewed the same way under the amended rule as they were before. The likelihood and severity of resulting sanctions have both been reduced by other parts of the rule, but for this part of the analysis, the expectations remain largely the same: issuing timely legal holds, monitoring compliance with those holds, suspending automated janitorial functions, and preserving through preemptive collection when needed. It is also worth noting that these expectations now extend to encompass preservation of things like metadata, text messages, vehicle data, and SAP data and that, of these, parties seem to be struggling most often with taking reasonable steps to preserve text messages on smartphones.
Upcoming in this Series
In the next Part, we will continue our review of ESI spoliation with a discussion of intent to deprive.