A couple of years ago, when conversations about the then-upcoming amendments to the Federal Rules of Civil Procedure started to become the CLE of the week, I attended an e-discovery presentation. As a fan of the 1980s film “War Games,” I was interested to see that the phrase “Shall we play a game?” was chosen to describe what the upcoming FRCP amendments had in store for discovery.

Now, after a year and a half of litigating cases under the amended rules, I wonder whether all the amendments really have accomplished is to entangle the legal system in its own version of global thermonuclear war.

Any rule changes can fall short of fixing every problem. This is the case for the FRCP amendments, as they relate to unwarranted spoliation claims of electronic documents. Ironically, the FRCP amendments were meant to clarify the rules and help parties avoid issues of spoliation; instead the new rules have placed electronic documents under a microscope, further escalating a trend of satellite litigation involving spoliation claims.

The problem is that every case involving large amounts of electronically stored information (ESI) is ripe for a threat of sanctions for spoliation and the tactical advantage that such a threat can provide. That’s especially true in light of the ease with which people can alter, modify or destroy ESI. Any party involved in litigation is vulnerable, even when operating in good faith and trying to implement a reasonable preservation plan. Alarmingly, in several jurisdictions attorneys do not have to show bad faith to seek sanctions against an opponent; they need only show that the negligent alteration or destruction of potentially relevant evidence occurred when the opponent was under a duty to preserve.

PLAYING GOTCHA

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