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.
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