Lawyers for Civil Justice Plea for Change in ESI Preservation Rules; Report Submitted to Civil Rules Advisory Committee

Lawyers for Civil Justice ("LCJ") recently submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to the preservation of information in litigation. The comment, which can be found here, pleads for a change in the current approach to preservation of electronically stored information ("ESI"), in which preservation obligations are largely created by individual courts on an ad hoc basis. This approach, LCJ points out, creates heavy burdens on litigants: The cost of preservation is too high, the risk of spoliation sanctions is too great, and the impact of ancillary litigation proceedings on discovery disputes is too debilitating. Substantive issues in many cases have become overshadowed by issues of preservation.

Part of the problem, LCJ points out, is that the concept of spoliation has not evolved to meet the demands of 21st Century litigation. Courts do not simply ask whether evidence was destroyed to prevent its use in litigation, but instead focus too heavily on inadvertent destruction of evidence, which requires complex determinations as to whether a party took "reasonable" steps to preserve. LCJ argues for a modified approach, in which courts focus less on the lost evidence, and more on the remaining evidence. Ideally, LCJ suggests, Congress should codify preservation obligations to the extent possible and create bright line rules to replace the current maze of case law.

LCJ’s approach is bold and fresh, particularly in its recommendation that parties only be subjected to sanctions for willful destruction of evidence. This approach could certainly cut down on litigation of ancillary preservation issues, particularly with some well thought out guiding commentary. To be sure, no model is likely to prove perfect, and adoption of LCJ’s model could have drawbacks of its own, such as removing the incentive for individuals and companies to diligently preserve some information or categories of ESI (as long as destruction is not willful). However, LCJ’s approach appears to strike a reasonable balance between litigants’ need for full discovery and reduction of uncertainty and costs, both to litigants and the Courts, associated with the current model. This approach is worth a closer look.

Paul E. Asfendis is an Associate on the Gibbons E-Discovery Task Force.
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