Electronic discovery has changed how attorneys think about preservation of evidence. Gone are the days of filing cabinets where documents can be locked away, safe from loss. Lawsuits today are won and lost on electronically stored information (ESI), which can be deleted or overwritten by a party’s computer system automatically and unintentionally. As a result, the 2015 amendments to the Federal Rules of Civil Procedure changed how courts can remedy and punish the loss of ESI, setting the framework for an evolving standard that Florida may consider adopting.
Under the prior version of Federal Rule of Civil Procedure 37(e), sanctions could not be entered if ESI was lost as a result of the routine, good-faith operation of an electronic information system. The new version allows a court to impose sanctions if ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it.” The rule was intended to address the burden and expense of over-preservation of data by prospective litigants worried about sanctions. Under the new FRCP 37(e), if the information that was lost cannot be restored or replaced through “additional discovery,” the court may order measures capable of curing any prejudice found to exist. However, the most severe sanctions cannot be entered absent a finding that a party intended to deprive an opponent of ESI.
