Apple Inc. introduced the iPad in 2010, creating challenges for proper data preservation of potentially discoverable information for litigation purposes. This is the same year the Conference on Civil Litigation was held at Duke University where the committee assigned to review the federal rules on e-discovery decided that amended rules were needed, because “many entities” are “spending millions of dollars preserving ESI for litigation that may never be filed” and “over-preserve ESI out of fear that some ESI might be lost, their actions might with hindsight be viewed as negligent, and they might be sued in a circuit that permits adverse inference instructions or other serious sanctions on the basis of negligence.”

Six iPad versions and four years later, the U.S. Supreme Court is poised to approve these amendments. In the interim, spoliation claims rose, sources and volumes of electronic data expanded exponentially, and companies facing the prospect of litigation continued their conservative and costly over-preservation, for fear of crippling spoliation sanctions in litigations.

Will the new Federal Rules give parties the comfort level they need to design reasonable data management policies, as well as help ensure that “the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a 'gotcha' game'”? This was the concern expressed by Judge Shira Scheindlin in her 2010 opinion, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities in the U.S. District Court for the Southern District of New York.