From the Article’s Conclusion:
“Rule 37(f) represents a carefully considered policy judgment reconciling two sometimes competing policy considerations: the need for preservation of potentially responsive ESI for use in litigation and the need to minimize the unnecessary intrusion into productive use of the systems involved. Its impact is carefully targeted and depends upon court endorsement, which cannot be gamed in advance. Spoliation of potential evidence ‘occurs along a continuum of fault- ranging from innocence through the degrees of negligence to intentionality.’ Rule 37(f) reflects a judgment that as to ESI lost through the routine operation of information system, only when fault lies along the higher ends of that spectrum are sanctions to be used.
Rule 37(f) should help to encourage public and private entities alike to act in good faith and undertake reasonable steps to accommodate preservation needs. Both requesting and producing parties have an interest in its effective use, which complements the other advances in the e-discovery amendments. It hopefully provides a template for those courts which face similar requests for sanctions under their inherent powers. As such, it more than meets the original intent of the proponents and should endure in its appropriate role for many years to come.”
Rules: 37(f) of the Federal Rules of Civil Procedure
Referenced Authority: The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production
The full text is available at http://scholarlycommons.law.northwestern.edu…