In our last installment, we discussed a proposed amendment to Federal Rule of Civil Procedure 37(e) that is intended to bring some uniformity to the law governing sanctions in connection with the preservation of electronically stored information. We set out our view that the proposed amendment "is almost certainly a step in the right direction."1 If anyone wanted to take a contrary view and argue that the proposed amendment is premature and the courts simply need more time to flesh out the law under current Rule 37(e), they need look no further than the three cases discussed in today's column.
When Judge Paul W. Grimm penned " Victor Stanley II"2 and attached as an exhibit a chart detailing the differing standards governing sanctions for spoliation, he highlighted a key concern for businesses and practitioners—that inconsistent standards were leading to over preservation and greatly increasing the cost of litigation. That concern has no doubt been at the heart of the movement to amend Rule 37(e). But, it is sometimes easy to forget that Rule 37(e)—and, indeed, all of the 2006 e-discovery amendments—are still in their infancy and that it can take time for courts around the country to address the issues and to converge—if at all—on a relatively uniform approach.
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