Case law regarding e-discovery is ever-changing because technology is constantly evolving. Courts are tasked with interpreting and applying new rules and amendments that pertain to various aspects of e-discovery. In 2018, the federal courts issued a handful of decisions on awarding sanctions for spoliation of electronically stored information (ESI), which falls under the purview of Federal Rule of Civil Procedure 37(e).
In December 2015, lawmakers amended Rule 37(e) to provide courts with a mechanism to streamline sanctions. From emails to text messages, parties have a duty to preserve all relevant information. In fact, the moment that a party anticipates litigation, it has a duty to take reasonable steps to preserve all potentially relevant ESI. The new Rule 37(e) was put in place to allow the courts to take a more unified approach to imposing sanctions when a party fails to preserve evidence or destroys it, whether or not it was intentional. The amended Rule 37(e) provides factors intended to help bring consistency to sanctions determinations.
Despite the intentions of the amended Rule 37(e), the 2018 decisions were still inconsistent. While some judges closely followed the amended rule, others relied instead on inherent authority to reach their decisions. Even when judges followed the amended rule, the array of awarded sanctions varied amongst the courts.