It’s been a year since the Federal Rules of Civil Procedure (FRCP) were amended. Each rule to be changed was examined by panels of discovery experts, who focused on what was working and what was not. Among other things, many had pointed to the excessive costs associated with electronic discovery as an indicator that the system was broken. One such cost arose from the practice of companies over-preserving evidence while not deleting outdated information out of a fear that they might incur sanctions for spoliation.
The number of sanctions issued in cases did not justify such fears (a 2010 Judicial Conference Advisory Committee on Civil Rules showed that only 0.15% of all civil cases from 2007 -2008, in 19 study districts, contained motions related to spoliation). However, districts differed in how they analyzed the behaviors leading to sanctions motions, and the sanctions for e-discovery violations varied greatly in both type and severity. It was not uncommon to see a sanction result in dismissals, adverse instructions or heavy fines. This uncertainty, both in the type and amount of bad behavior that might give rise to sanctions, and in the severity of the sanction itself, generated the fear that ultimately drove the revision of FRCP 37(e).
