This article appeared in Cybersecurity Law & Strategyan ALM publication for privacy and security professionals, Chief Information Security Officers, Chief Information Officers, Chief Technology Officers, Corporate Counsel, Internet and Tech Practitioners, In-House Counsel. Visit the website to learn more.

Judges across the country are not in alignment on whether spoliation sanctions can be warranted under the court’s inherent authority—and outside the scope of FRCP 37(e). Regular readers of our quarterly Case Law Review might recall that the court’s use of Inherent Authority was a topic of our Summer review in the September CL&S issue; where does FRCP 37(e), which governs negative inference sanctions for lost ESI, come in to play? And is lost electronically stored information (ESI) truly lost if it’s available outside of a physical hard-drive?

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