An End to Over-Preservation? An Expert Perspective on the FRCP

This blog post is adapted from commentary on Rule 37 by William F. Hamilton, Legal Skills Professor and Executive Director, UF Law E-Discovery Project Fredric G. Levin College of Law, University of Florida, in FRCP & E-Discovery: The Layman’s Guide.

FRCP Rule 37(e) grounds the requirements for preserving electronically stored information (ESI) in the real world, where “reasonableness” and good faith efforts to store relevant information are “good enough,” as opposed to expecting perfection. The Rule doesn’t obviate the common law duty to preserve relevant information; rather, by defining circumstances under which curative measures may be undertaken, it provides organizations with justification to stop over-preserving.

William Hamilton, Executive Director of the University of Florida Law E-Discovery Project, explains that, “Prior to the Rule change, corporations holding terabytes of information often faced the Hobbesian choice of preserving everything imaginably relevant or running the risk that years after the commencement of a case, a court might determine that some unpreserved ESI–that was viewed at the time of preservation as irrelevant or of marginal value–should have been preserved and impose a drastic sanction for the preservation failure.” With a documented, reasonable, good faith preservation plan, organizations can prevent—or at least in good measure, avoid—sanctions and adverse jury instructions even if they cannot ultimately provide every document under the sun. 

However, has the pendulum swung too far in favor of defendants? Professor Hamilton explains, “If a failure to preserve evidence that should have been preserved results in substantial prejudice, why should the court be limited in applying an appropriate remedy–even dismissal or an adverse inference instruction– because the complaining party cannot meet the excruciatingly high standard of demonstrating that the evidence was lost as part of a strategy to deprive the party of the use of the information in the litigation? Our justice system is built on the discretion of courts to accomplish justice; why tie a judge’s hand in these factually complex situations involving the loss of otherwise discoverable information that cannot be restored or replaced?”

Lady Justice is most often depicted both blindfolded and holding a scale. If perhaps the scales have tilted too far in one direction, at least recent history demonstrates that the Supreme Court and Judicial Conference will not be shy about amending the Federal Rules of Civil Procedure in an effort to equalize them.

Find out more about the history of the FRCP, as well as practical tips on how to use them in your e-discovery practices, by downloading Exterro’s e-book, FRCP & E-Discovery: The Layman’s Guide.