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Abstract

At the federal level, the Civil Rules Advisory Committee has responded to the "unique and necessary feature of computer systems--the automatic recycling, overwriting, and alteration of electronically stored information"--with a proposed amendment to Rule 37. The proposed Rule 37(f) would shield litigants from sanctions for the destruction of electronic data if the party "took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action" and "the failure resulted from the loss of the information because of the routine operation of the party's electronic information system." The safe harbor provision would not apply if "a party violated an order in the action requiring it to preserve electronically stored information."[...] The shape and form of a safe harbor provision--or even the need for one--can only be understood by analyzing how courts have been addressing this problem in the absence of such a rule. Have courts sanctioned parties for conduct that is merely negligent, as opposed to willful or reckless? Have they insisted on a showing of prejudice before they will sanction parties for spoliation? Have parties generally deserved the sanctions they received? In an attempt to provide guidance to the legal community, we have surveyed recent written opinions on this topic to determine how courts have defined sanctionable conduct and what sanction has been imposed for such conduct. Our sample consisted of all the written opinions in the sanctions arena since January 1, 2000: 45 federal cases, and 21 state cases. We included state cases in the sample because spoliation issues are not confined to federal court. We limited the sample to the twenty-first century because we believed recent cases would be the most indicative of whether courts had appropriately adapted to e-discovery issues caused by technological advancements. Although we are pleased to report that courts seem to be "getting it right," our analysis is necessarily limited by our small sample and cannot be applied to sanctions cases generally. Because we could only locate and analyze written opinions, the sample is undoubtedly skewed in favor of cases granting sanctions. Many sanctions decisions are issued from the bench, and courts are less likely to issue written opinions when they are denying sanctions than when they are granting them. With those caveats in mind, we now turn to the substance of the survey. Part II of this Article summarizes the data gleaned from the cases, while Part III interprets the data. Part III also highlights representative cases in which sanctions were granted or denied and the reasoning behind those decisions. The Article concludes with a discussion of how our survey can inform the current debate on e-discovery reform.

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