Monday, December 29, 2008
Andrew Hebl, a law clerk for the Wisconsin Supreme Court, has posted a new article on SSRN discussing Federal Rule of Civil Procedure 37(e). The rule states that, generally, "a court may not impose sanctions under these rules 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." He takes the position that, since the Rules were amended in 2006, courts have been misapplying this "good faith" standard:
The Federal Rules of Civil Procedure were amended effective December 1, 2006 to address concerns about discovery of electronically stored information. One of these amendments, Rule 37(e), created a safe harbor for parties that destroy relevant information as a result of the good faith, routine operation of their electronic storage systems. The rule recognizes the enhanced difficulty of preserving relevant information in the electronic context due to the automatic operation of electronic storage systems and the necessary deletion and modification of such systems' contents from time to time due to storage constraints and other technological limitations. The rule's good faith requirement protects parties and addresses their concerns by precluding sanctions where conduct is not reckless or intentional, and applies after a duty to preserve relevant evidence has arisen. This Comment is the first to consider how courts have applied the rule since its adoption. In evaluating courts' performance, this Comment concludes that the rule has been misapplied and, in effect, rendered superfluous, in that courts have continued to impose sanctions for insufficiently culpable conduct, or alternatively, have essentially ignored the rule by holding parties to a strict liability standard. The end result is that problems created by electronically stored information in the destruction of evidence context have been left unaddressed. The article attempts to remedy this situation by proposing a framework for proper application of Rule 37(e).