Login | June 25, 2018

Shifting burdens on disappeared ESI

Technology for Lawyers

Published: May 5, 2017

Josh “Bowtie” Gilliland has an interesting analysis of the shifting evidence preservation burdens that have occurred since the rule was changed on partiers seeking sanctions for lost electronically stored information (ESI).

Rules governing these sanctions, where a party cannot produce ESI because it is “lost” or otherwise unavailable, changed in 2015. The new rule, Federal Rule of Civil Procedure 37(e), requires that a party seeking sanctions must show there was an “intent to deprive” them of the lost ESI, Gilliland wrote.

(Note: The 2016 changes to Rule 37 in the Ohio Rules specifically did not adopt this standard. Ohio continues a very broad path to these sanctions under its rules—much broader than the federal).

Previous to this change, depending on precedent, there could be sanctions for standards as low as negligence under FRCP R.37.

In addition, several recent court opinions cited by Gilliland seem to indicate that there needs to be a specific “smoking gun” for sanctions to be ordered.

In one case, where sanctions were not granted, the plaintiff in a lawsuit against a prison sought an adverse inference instruction for the prison’s loss of a statement that he had made. The motion failed because the plaintiff had no direct evidence of an intent to withhold the evidence, and because he could have, at any rate, testified to the incident himself.

A second case denying sanctions involved a motion under the new rule that relied on case law under the old rule. That’s bad form, of course, and the court didn’t accept the argument. The judge probably had to restrain himself from sanctioning the moving party.

In another case, though, an “intent to deprive” was proven by evidence that seems slightly circumstantial. A series of text messages had been “lost” by the nonmoving party. Through a series of messages, the nonmoving party had discussed “being careful” about what they talked about, because there was “going to be a lawsuit.” The judge found that was enough intent to impose sanctions.

Even though mere negligence is no longer sufficient to impose sanctions in “lost” ESI, Gilliland imagines that, the more egregious the “negligence,” the more most judges would look askance at the lawyers who couldn’t produce the evidence.

I’m sure there is lots more to come on this issue.