Bloomberg BNA: Electronically Stored Information Spoliation Sanctions: A New Test, Escaping Liability for Bad Faith Destruction and a $3 Million Fine

Articles / Publications

In an article published on Jan. 4, 2017 in Bloomberg BNA, Matthew Scully provides insight on electronically stored information and how it pertains to amendments to the Federal Rules of Civil Procedure. Scully explains that the purpose of the amendments was to inject more "common-sense" and "reasonable limits" in discovery practice, thereby improving discovery's utility, reducing its cost and burden and focusing litigation on the substantive issues in the case; a welcome reprieve from wasteful discovery practices. National uniformity now exists in the federal courts for determining spoliation of ESI disputes. This matters because the former Rule 37(e)'s imprecise language permitted courts to apply different standards for analyzing ESI spoliation sanctions resulting in inconsistent and sometimes unfair results. Finally, the new Rule 37(e) of the Amended Federal Rules of Civil Procedure should improve discovery's utility, reduce its cost and burden and focus litigation on the real issues in the case.

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