Wagstaffe Prac Guide: Fed Civil Proc Before Trial § 33-IV

Summary

Before 2006, the federal courts did not meaningfully distinguish between electronically stored information (“ESI”) versus tangible documents and physical evidence in sanctioning parties for failing to preserve evidence in a lawsuit. The courts used the same standards for both, even though preserving the mushrooming quantities of ESI that many modern businesses stored in their electronic information systems posed unique, daunting challenges for litigants and their counsel. Then-prevailing standards, formulated with paper documents and physical evidence in mind, were ill-suited to addresses those challenges. The lack of uniformity in the law exacerbated those challenges. Standards varied significantly from one federal circuit to another, especially with respect to the degree of culpability, i.e., negligence, gross negligence, willfulness or bad faith, which justified a particular sanction. For example, the circuits did not agree on the mindset a party must have to be subject to the harsh ...