FRCP Amendments: Breakdown of Newly Revised Rule 37(e)

개정된 EDISCOVERY FRCP Rule 37(e) 참고

http://www.exterro.com/e-discovery-beat/2014/04/14/frcp-amendments-breakdown-of-newly-revised-frcp-37e/

Noteworthy among the changes are the following:

1. No strict liability.  The “because a party failed to take reasonable steps” language of section (e) sets the foundation for culpability; there is no strict liability for inability to produce ESI.

2. Opportunity to search.  Using the “though additional discovery” language of section (e), the court can order the producing party to try to find duplicates of the requested ESI elsewhere, perhaps in backup tapes. This is similar to the “court may nonetheless order discovery from such sources” language of Rule 26(b)(2)(B).

3. Residential Funding rejection.  The “intent to deprive” language of section (e)(2) was designed to reject the negligence standard used in Residential Funding.

4. ESI only.  This rule only applies to electronic evidence, rather than tangible evidence. As a consequence, it would not apply in a matter such as Silvestri v. General Motors Corp., where the matter was dismissed for spoliation when a key piece of evidence (an automobile airbag) was lost or destroyed.

5. Not mandatory.  Judges are not required to use this rule; they still have the ability to draw on the inherent power of the court to address issues of spoliation.