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Does new Rule 37(e) Give Serial Defendants a Blueprint for Never Getting Sanctioned for E-Discovery Misconduct Again? (Guest Blogger, Mary Mack)

Created on February 24, 2017

Former Content Marketing Manager at Exterro

Exterro FRCP Visual Guide 7 Ways to Be Sanctioned

*Editor's Note: Today's blog is written by Mary Mack, Esq., Executive Director, Association of Certified E-Discovery Specialists (ACEDS)

Preserving broadly, producing narrowly, and ad hoc preservation are so 2006. With the 2015 amendments to FRCP 37(e), it is clear the pendulum is swinging the other way on both of these issues.

Preserving broadly was initially seen as a cost-effective risk-reduction measure. The popular method was to cast a wide net and to preserve by collection. That changed when the cost of servers, backups, and expanded scope in subsequent litigation was tallied. At conferences, in conversations, and occasional opinions, judges have been coming to terms with the expense of over-preservation. Only 60% of the judges surveyed by Exterro think that collection of key custodian data need be shown to demonstrate reasonable steps were taken to preserve. Only 70% now feel that suspending document retention policies should be done.

The 2006-style preservation was generally case specific, ad hoc, and poorly documented. Many organizations did not even have document retention policies. In 2017, a substantial number of jurists (65%) believe that a full blown repeatable process should be done, and a supermajority (78%) believe all preservation steps should be documented.

Much 2006-era judicial quill oil was spilled over whether legal holds were necessary or whether the absence of a written legal hold constituted gross negligence. In 2017, a whopping 87% believe a legal hold should be sent. Something that is sent is likely to be written.

So if you think the new amendments make it less likely legal holds and litigation readiness will be important, you have another think coming.

Documented, repeatable processes are the hallmark of litigation-ready, battle-tested organizations. What can a start-up, or an infrequent, unregulated party do to take advantage of the grace granted by passing the “reasonable steps to preserve” test?

The old fashioned legal hold coupled with collection of key custodians may be enough to meet the threshold in the first section of 37(e):

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it….

As Eric Mandel demonstrates in his beautiful FRCP 37(e) flowchart, the producing party that demonstrates reasonable steps to preserve in the face of data loss can tell the requesting party to “talk to the hand.”

Without reasonable steps, a party may go down the slippery slope of discovery about discovery, into the cauldron of prejudice and intent to deprive. Or put another way, legal holds and documented processes are the seat belts and airbags of e-discovery. You may get into a life threatening crash, but you are much more likely to survive with those two safety steps in place.


Mary Mack is the Executive Director of ACEDS, bringing more than a decade of strong credibility and sound leadership within the e-discovery community. Frequently sought out by media for comment on industry issues, she has spoken at venues including Gartner Symposium, the American Bar Association International Law Committee, and others. Mary is the author of A Process of Illumination: The Practical Guide to Electronic Discovery, considered by many to be the first popular book on e-discovery and the co-editor of the treatise, eDiscovery for Corporate Counsel.