Preservation of electronically stored information (ESI) continues to be a vexing topic for attorneys and their clients. Judicial expectations vary widely, existing precedent is often unhelpful, and the Federal Rules of Civil Procedure (Federal Rules) do not give guidance on the issue. The lack of guidance, coupled with conflicting judicial standards, often causes parties—mindful that one misstep could lead to sanctions—to over-preserve.
Acknowledging the growing cry for guidance on the topic of preservation in the Federal Rules, the Discovery Subcommittee of the Advisory Committee on Civil Rules held a mini-conference on preservation and sanctions on Sept. 9, 2011. The subcommittee, chaired by Judge David Campbell, proposed three wide-ranging, alternative rulemaking proposals: a rule setting forth a detailed list of preservation duties with specific guidance on triggers, scope, and sanctions; a rule providing a more general list of such duties without specific guidance; and a rule focusing only on sanctions in the absence of reasonable preservation-related behavior.1 It is unclear what, if anything, will come from the subcommittee’s initial work.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
