Proposed Changes to Federal Rule 37(e)

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1 Young Lawyers Preservation of Electronically Stored Information By Jennifer Ecklund and Janelle L. Davis Proposed Changes to Federal Rule 37(e) The proposed rule could go a long way toward providing certainty to, and conserving resources for, both courts and litigants. At its November 2, 2012, meeting, the Judicial Conference of the United States Advisory Committee on Rules of Civil Procedure voted to recommend approving amendments to Federal Rule of Civil Procedure 37(e). Both the Advisory Committee on Rules of Civil Procedure and the Committee on Rules of Practice and Procedure, referred to as the Standing Committee, likely will consider a final version of the proposed rule as well as publication commentary later this year. Given the increasing importance of electronic discovery and its corresponding obligations, the proposed rule change probably will affect most practitioners. This article will briefly address (1) the current version of Federal Rule of Civil Procedure 37(e); (2) issues created by the varying interpretations and applications of the rule; and (3) the proposed change recommended by the Advisory Committee on Rules of Civil Procedure. Federal Rule of Civil Procedure 37(e) The development of technology, particularly over the last decade, has led to increased concerns and discovery obligations for both plaintiffs and defendants. In the face of increased technological capabilities and the sheer volume of electronically stored information, companies have adopted document retention policies that routinely delete electronically stored information after a certain period of time. Of course, these retention policies and the automatic deletion of information sometimes led to spoliation claims when destroyed information potentially was relevant to a pending or future dispute. Before the 2006 amendments to the Federal Rules of Civil Procedure, courts often struggled to find a balance between the duty to preserve and the complexities of managing electronically stored information. Some courts recognized the arduous burden that keeping all electronically stored information would place on litigants and adopted a less stringent approach to the duty to preserve. See Concord Boat Corp. v. Brunswick Corp., No. LR-C , 1997 U.S. Dist. Lexis 24068, at *15 17 (E.D. Jennifer Ecklund focuses her practice on cases in securities fraud, health care fraud, tax fraud, and mortgage fraud, as well as matters related to Ponzi schemes and resulting receiverships. Janelle L. Davis focuses her practice on mass tort, product liability, and aviation litigation, representing commercial airlines in litigation arising from passenger claims and product manufacturers in product liability litigation. They both work in the Dallas office of Thompson & Knight LLP. The authors acknowledge the contributions of Doug Salisbury, an associate with Thompson & Knight LLP. 44 For The Defense April DRI. All rights reserved.

2 Ark. Aug. 29, 1997) (denying the plaintiffs request for a spoliation instruction and for costs and fees because the court found that the deletion of the defendant s was not due to bad faith). Other courts, however, took a more stringent approach, holding that the duty to preserve required affirmative action to prevent the automatic deletion of material that would be reasonably likely to be the subject of a discovery request even before a request is actually received. See Wiginton v. Ellis, No. 02 C 6832, 2003 U.S. Dist. Lexis 19128, at *12 18 (N.D. Ill. Oct. 27, 2003) (finding that a defendant that followed its normal document retention and destruction policies had acted in bad faith by failing to preserve evidence and that it should have changed its normal retention policy). Perhaps one of the most notable cases demonstrating a stringent approach is the Second Circuit 2002 decision in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002). In that case, Residential Funding sued DeGeorge on a contract, and the parties then agreed to a discovery schedule. Despite their agreement, Residential Funding missed several deadlines and failed to produce certain relevant s, and DeGeorge moved for sanctions in the form of an adverse inference charge. The district court denied the motion for sanctions, in part because DeGeorge did not establish bad faith or gross negligence on the part of Residential Funding. On appeal, the Second Circuit held that discovery sanctions may be imposed on a party that breaches a discovery obligation through ordinary negligence as well that bad faith or gross negligence need not be proved. Accordingly, the Second Circuit remanded the case to the district court for reconsideration, and the order originally denying the motion for sanctions was vacated. Thus, according to this Second Circuit decision, a court could impose sanctions when appropriate based on a party s noncompliance with discovery obligations whether or not the party acted in bad faith. A trial court, therefore, would have wide discretion to make sanctions available and to impose them, and wise litigants would take care to ensure that they proactively addressed the requests made to them and to preserve evidence that a litigant might request at a later date. Under Residential Funding, a mere negligent failure to preserve evidence could subject a party to monetary sanctions, an adverse inference instruction, or an array of other possible penalties that may affect the offending party s case. The Residential Funding decision made clear that a court would view the efforts that a litigant undertook to avoid destroying evidence as central to whether it could appropriately sanction the litigant. According to the Second Circuit, litigants must take some steps to ensure that they preserved relevant materials to protect themselves from discovery penalties down the road. As parties continued to struggle with the complex responsibilities that accompany discovery of electronically stored information, disparate approaches by the courts ultimately prompted a change to the Federal Rules of Civil Procedure to provide uniformity and clarity. In 2006, Federal Rule of Civil Procedure 37 was amended to add subsection (f) in an attempt to address the complex balance between the need for parties to have access to electronically stored information and the duty of custodians of that information to preserve evidence. Federal Rule of Civil Procedure 37(f) is now codified in 37(e) as a result of stylistic changes that were made in The rule was also designed to provide a consistent and clear standard for courts to apply when deciding whether to impose sanctions resulting from spoliation. But while the drafters of the rule wanted to provide a clear standard for sanctions, they also intended for the rule to provide only limited protection against sanctions arising from the destruction of electronically stored information through routine systems. Advisory Comm. on Rules of Civil Procedure, Report of the Civil Rules Advisory Comm. 83 (May 27, 2005). In other words, the drafters wanted to protect parties with routine electronic systems that automatically discarded information. Id. Accordingly, when drafting the text of Federal Rule of Evidence 37(f), the Advisory Committee on Rules of Civil Procedure tried to strike a balance between the importance of preservation of evidence and a party s routine operation of its computer systems. Id. According to the Advisory Committee on Rules of Civil Procedure, asking a party to stop the routine operation of its computer systems as soon as it anticipates litigation was unreasonable. Id. With these considerations in mind, Federal Rule of Civil Procedure 37(f) attempted to create a safe harbor for parties that inadvertently destroyed documents in connection with the use of an electronic Litigants must take some steps to ensure that they preserved relevant materials to protect themselves from discovery penalties down the road. information system. Under the language of the rule, and unless exceptional circumstances exist, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Fed. R. Civ. P. 37(e). Inconsistencies in the Interpretation of the Rule Although the goal of the Federal Rule of Civil Procedure 37(e) was to provide consistency and clarity, it has done little to achieve this goal. Despite the language of the rule, some courts still apply the rationale of the Second Circuit decision in Residential Funding. And courts continue to rule inconsistently some applying the plain language of the rule to determine that they cannot impose sanctions for the failure to preserve electronic evidence without bad faith, and others deeming sanctions permissible based on the inherent power of the court or based on a party s failure to preserve materials once the party reasonably anticipated litigation. First, some courts have obediently followed the plain language of the rule in finding that they cannot impose sanctions appropriately without bad faith. For exam- For The Defense April

3 Young Lawyers ple, in Escobar v. City of Houston, CV , 2007 WL (S.D. Tex. Sept ), plaintiffs sued the city after their son was killed by a Houston police officer and sought sanctions arising from the destruction of certain electronic communications relevant to their claims. The court refused to sanction the City of Houston, finding that the documents were destroyed Some courts have obediently followed the plain language of the rule in finding that they cannot impose sanctions appropriately without bad faith. 46 For The Defense April 2013 under the routine operation of a document destruction policy and the Houston Police Department s computer system. The plaintiffs failed to show bad faith regarding the destruction of the documents at issue. Without evidence of bad faith, the court held that sanctions were inappropriate according to Federal Rule 37(f), then the rule in effect. The 2007 stylistic changes that codified 37(f) as Federal Rule of Civil Procedure 37(e) had not been made when this decision was issued. Similarly, in Se. Mech. Services, Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL (M.D. Fla. July ), the defendant complained of the plaintiff s failure to adopt a proper litigation hold and to suspend automatic overwriting of backup tapes that led to the destruction of relevant information. In that case, the plaintiff contended that one defendant deleted all of his , contacts, and tasks before ending his employment with plaintiff. The plaintiff s IT manager made this discovery a few days after the defendant s employment terminated but did not review the backup tapes that would have contained the deleted information until more than two weeks later when the system had already overwritten the tapes automatically. Another defendant complained because this would have been the only evidence to support or to refute the plaintiff s claim that the materials had been deleted. The court ultimately found that sanctions were inappropriate because the documents were lost during the routine operation of the plaintiff s computer system, and nothing indicated that the plaintiff operated the system in bad faith. Finally, in Denim North America Holdings v. Swift Textiles, 816 F. Supp. 2d 1308 (M.D. Ga. 2011), the plaintiffs did not have a document retention policy, and employees routinely deleted all but important s immediately. This practice did not change after the plaintiffs reasonably anticipated the litigation. The defendant sought dismissal as a sanction for the destruction of the s. The court denied sanctions, holding that bad faith was not apparent, and Federal Rule of Civil Procedure 37(e) prevents imposing sanctions without such a finding. The second approach taken by some federal courts is to hold that Federal Rule of Civil Procedure 37(e) does not limit a court from imposing sanctions under its inherent powers or because a party has an obligation to preserve evidence once the party reasonably anticipates litigation. This approach is more in line with the Residential Funding decision despite the adoption of Federal Rule of Civil Procedures 37(f) in In three separate cases, the U.S. District Courts for the Southern District of New York, the District of Columbia, and the Northern District of Illinois all held that the rule did not operate to exempt a party from complying with its duty to preserve information because of pending or reasonably anticipated litigation. See Disability Rights Council of Greater Washington v. Washington Metro. Transit Auth., 242 F.R.D. 139 (D. D.C. 2007); Arista Records v. Usenet. com, 608 F. Supp. 2d 409 (S.D. N.Y. 2009); Domanus v. Lewicki, 284 F.R.D. 379 (N.D. Ill. 2012) (objections sustained by 2012 WL (N.D. Ill. Aug. 13, 2012). In each of these cases, the courts held that the parties were obligated to intervene before destruction of electronic information could occur or suffer consequences based on their failure to do so. As the Domanus court put it, Rule 37(e) does not apply where a party is already under a duty to preserve information. Each of these courts found that the offending party had breached its existing duty to preserve information by failing to stop routine destruction mechanisms even without a showing of bad faith. In Stanfill v. Talton, 851 F. Supp. 2d 1346 (M.D. Ga. 2012), the court captured the argument that many parties use to circumvent Federal Rule of Civil Procedure 37(e) in its current form to support applying the Residential Funding s negligence standard. Essentially, these parties argue either that they have not moved for sanctions under the federal rules but instead under a court s inherent powers, or the other party did not lose evidence as a result of the good faith operation of an electronic information system, but rather because of [the other party s] failure to preserve the [evidence] before it was overwritten when that party had a duty to preserve that evidence. Litigants argue that when a party has a duty to preserve evidence and does not intervene to stop the routine operation of the storage system, then that party cannot claim that it operated a system in good faith. These positions have convinced several courts to use their inherent powers to disregard the plain language of Federal Rule of Civil Procedure 37(e) and to impose sanctions based on failure to intervene in the routine operations of an electronic information system. Nucor Corp. v. Bell, 251 F.R.D. 191 (D. S.C. 2008), exemplifies a court s willingness to use its inherent powers to impose sanctions despite the bad faith standard in Federal Rule of Civil Procedure 37(e). In that case, Nucor sued a former employee and a competitor for misappropriation of trade secrets. The plaintiff filed a motion for sanctions for spoliation and alleged that the defendants intentionally destroyed evidence on a laptop, among other things. The defendants argued that Federal Rule of Civil Procedure 37(e) prevented the court from imposing any sanction for loss of data on the laptop. The court disagreed, declaring that even if 37(e) protected the defendants conduct, the rule only applied to sanctions issued under the Federal Rules of Civil Procedure and was not applicable when the court sanction[ed] a party pursuant to its inherent powers. With this rationale, courts are not limited by the provisions of Federal Rule of Civil Proce-

4 dure 37(e) when they determine whether they may sanction discovery conduct, and a party cannot rely on good faith as offering certain protection when the party has been accused of destroying evidence. Thus, while enacting Federal Rule of Civil Procedure 37(f) in 2006 sought to clarify the circumstances under which sanctions would be an appropriate remedy for the loss or destruction of evidence, courts have not necessarily strictly adhered to the rule in their decisions. As these cases demonstrate, some courts have imposed discovery sanctions on a party despite the rule even when another party has neither alleged nor demonstrated bad faith by the potentially offending party in the strictest sense. A court may resort to its inherent power to sanction a party, or it may determine that failure to act to interrupt the routine destruction of information suffices as evidence of bad faith given a party s duty to preserve information once the party reasonably anticipates litigation. The rule in its current form has not therefore consistently provided protection to a party when the routine operation of computer systems destroys documents, at least not when that party should anticipate that a system that routinely destroys documents might lose documents relevant to anticipated or pending litigation. These decisions suggest that a litigant needs to undertake affirmative efforts to demonstrate compliance with its preservation obligations to protect the litigant fully from discovery sanctions down the road, irrespective of intentions. The Proposed Rule Change The continued inconsistency among the federal courts and the continued application of the Second Circuit decision in Residential Funding has prompted yet another proposed change to Federal Rule of Civil Procedure 37. If adopted, the new Federal Rule of Civil Procedure 37(e) will more precisely set forth the standard and factors for courts to apply when deciding whether to impose sanctions for the destruction of electronically stored information. Though still subject to change, the proposed new Federal Rule 37(e) currently reads as shown in box at right: Practitioners will want to note several important things about the proposed new rule. First, the rule applies to all discoverable information, not just electronically stored information or information lost due to the routine, good-faith operation of an electronic information system. Second, the proposed rule is designed to give litigants who make reasonable efforts to satisfy their preservation responsibilities the confidence that they will not suffer serious sanctions should they lose information despite those efforts. Thus, under the proposed rule, a court may impose serious sanctions only if the court finds that (1) the failure was willful or in bad faith and caused substantial prejudice in the litigation; or (2) that the failure irreparably deprived a party of any meaningful opportunity to present a claim or defense. This proposed change provides a clear and consistent standard for courts to look to when deciding sanctions motions. The change will no longer permit courts to impose serious sanctions under a negligence or gross negligence standard. Moreover, courts may not impose sanctions unless they find willfulness or bad faith and substantial prejudice. The exception to the bad faith requirement is if the party seeking the discovery establishes that the failure to preserve discoverable information irreparably deprived the party of any meaningful opportunity to present a claim or a defense. The drafters deliberately used these specific words in (e)(2)(a) (B). The words heighten the burden that the party seeking sanctions must meet. According to the Advisory Committee on Rules of Civil Procedure, examples of such situations that would warrant sanctions might include cases in which the alleged injury- causing instrumentality has been lost before the parties may inspect it, or cases in which the only evidence of a critically important evidence has been lost. Advisory Comm. on Rules of Civil Procedure, Report of the Civil Rules Advisory Comm. 131 (Nov. 1 2, 2012). These situations obviously happen rarely. Electronic Info, continued on page 72 Proposed New Federal Rule 37(e) (e) FAILURE TO PRESERVE DISCOVERABLE INFORMATION. If a party failed to preserve discoverable information that reasonably should be preserved in the anticipation or conduct of litigation, (1) The court may permit additional discovery, order the party to undertake curative measures, or require the party to pay the reasonable expenses, including attorney s fees, caused by the failure. (2) The court may impose any of the sanctions listed in Rule 37(b)(2)(A) or give an adverse- inference jury instruction only if the court finds: (A) that the failure was willful or in bad faith and caused substantial prejudice in the litigation; or (B) that the failure irreparably deprived a party of any meaningful opportunity to present a claim or defense. (3) In determining whether a party failed to preserve discoverable information that reasonably should have been preserved, and whether the failure was willful or in bad faith, the court should consider all relevant factors, including: (A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable; (B) the reasonableness of the party s efforts to preserve the information, including the use of a litigation hold and the scope of the preservation efforts; (C) whether the party received a request that information be preserved, the clarity and reasonableness of the request, and whether the person who made the request and the party engaged in good-faith consultation regarding the scope of preservation; (D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and (E) whether the party sought timely guidance from the court regarding any unresolved disputes concerning the preservation of discoverable information. See Comm. on Rules of Practice and Procedure, Report of Comm. on Rules of Practice and Procedure 104 (Jan. 3 4, 2013). For The Defense April

5 Electronic Info, from page 47 Third, the proposed rule provides a variety of considerations that a court should weigh in calibrating its response to a loss of information. Specifically, the rule provides five factors that courts should use to determine whether a party failed to preserve discoverable information that reasonably should have been preserved or whether the failure was willful or in bad faith. These factors give practitioners some guidance about how courts will perceive their actions and give courts direction about appropriate circumstances for sanctions. Finally, the proposed rule gives courts rule-based authority to impose sanctions, eliminating the need for courts to resort to their inherent authority as so many have in the past. As electronic discovery continues to increase, specific standards relating to preserving discoverable information, particularly electronically stored information, will continue to be critically important to both plaintiffs and defendants. The proposed rule will go a long way to provide some certainty to courts and to litigants, and it should incentivize parties to make reasonable decisions about preservation issues and to avoid the urge to preserve excessively, which increases the cost of discovery. The proposed rule should also conserve the resources of both the courts and the litigating parties by reducing the motivation to spend time arguing about preservation and spoliation issues. Ultimately the proposal by the Advisory Committee Rules of Civil Procedure is still just that a proposal. It may change, and if and when Congress agrees to adopt a version, the courts will interpret it. For now, the proposed rule represents a step toward clarity and consistency for litigants and should further assist courts in managing the complicated issues that arise from the ever- expanding digital age. 72 For The Defense April 2013

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