Since the amendments to the Federal Rules of Civil Procedure pertaining to e-discovery took effect on Dec. 1, 2015, courts have issued numerous opinions holding that the amended Federal Rules of Civil Procedure 37(e) prevents the issuance of spoliation sanctions even against parties who failed to preserve, or destroyed, large volumes of Electronically Stored Information (ESI), which may have included not just responsive electronic documents but documents that substantially undercut the position of the producing parties. One such opinion is In re Ethicon Pelvic Repair System Products Liability Litigation (Taylor v. Ethicon), No. 2:12-cv-00376 (S.D.W.Va. October 6, 2016), which we will discuss in this month’s article. Through this discussion we will review the inherent contradictions in the amended rule and the arguments underlying the amendment, the dissatisfaction that led to it and whether the amendments will spark dissatisfaction as they are applied.
Background
In Ethicon, all plaintiffs in the multidistrict litigation had moved before the magistrate for sanctions against defendant Ethicon for spoliation. The magistrate found that “Ethicon had a duty to preserve information contained in certain sales representatives’ custodial files, that Ethicon breached its duty to preserve the information, and that the files contained some relevant evidence.” The magistrate, however, also found that the record did not show “that Ethicon, or any employee of Ethicon, acted willfully or intentionally to delete, discard, or hide evidence,” and that whatever plaintiffs suffered “did not warrant the extreme sanctions sought in the underlying motion, such as entering a default judgment, striking defenses, or issuing an adverse inference instruction to the jury.” The magistrate, however, did leave open that a plaintiff, on a case-by-case basis, could “present circumstances warranting the introduction of spoliation evidence at trial and an adverse jury instruction.”
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