Author – Matthew Verga, Feb 2020
Among Federal Rules of Civil Procedure revised in December 2015, was Rule 37, which governs discovery failures like ESI spoliation and the associated sanctions. The amended version of this rule included three significant changes from the version that preceded it, in the hopes of producing greater consistency and predictability. In the four years since this amendment became effective, the amendment has achieved that goal, 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, twenty-six page white paper, Director of Education Matthew Verga, JD, reviews an assortment of cases from the past four years to explore the answers to those questions and more.
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