XDD Webinar – When the Bough Breaks: ESI Spoliation Sanctions

RSVP for XDD Webinar – When the Bough Breaks: ESI Spoliation Sanctions
Wed, Jan 29, 1 PM EDT

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 made was the replacement of the 2006 version of FRCP 37(f), which covered ESI spoliation, with the new 2015 version of FRCP 37(e).  This amended version of the subdivision makes three primary changes from the version that preceded it: it focuses on the more straightforward question of whether ESI has been lost because a party failed to take reasonable steps to preserve it, it adds requirements of irreplaceability and prejudice before the application of consequences, and it creates a clear requirement of intentionality for the application of severe sanctions.

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In the four years since this amendment became effective, the amendment has increased consistency and predictability to some extent, but it has also created new areas of ambiguity and conflict.  For example, what are “reasonable steps to preserve”?  What is a sufficient basis for a finding of “intent to deprive,” and who makes the call?  What curative measures and sanctions should be used when?  Can courts still act under their inherent authority as well?  In this free educational webinar, XDD Director of Education Mathew Verga, JD, will review an assortment of cases from the past four years to explore ESI spoliation sanctions topics, including:

  • Reasonable steps to preserve
  • Intent to deprive of use in litigation
  • Courts’ inherent authority to sanction
  • Other limitations on sanctions

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