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

How is this a problem? If parties are not preserving or properly producing potentially relevant evidence, that needs to be addressed. But, all too often, lawyers raise spoliation claims not for legitimate reasons but instead to turn cases lacking substantive merit into opportunities to procure a quick settlement.

This game of gotcha involving ESI and spoliation is a major concern for clients because of the size and complexity of their ESI environments. That can lead to a powerful temptation to settle rather than risk potential spoliation claims and try cases on their merits. Therefore, lawyers must address unwarranted allegations of spoliation head on to protect their clients from this kind of calculus.

Openly challenge spoliation allegations through candid discussions with opposing counsel. Often these discussions may become technical in nature and require greater client involvement, but they should reveal quickly whether there is merit to the other side’s claims, sometimes even before an opponent files a sanctions motion.

When legitimate concerns about a client’s ESI do exist, explore other sources from which to obtain the electronic documents. Do not become fixated — or let the other side fixate — on the fact that documents from a specific source may no longer be available. The amended rules require that relevant documents be produced once; if the client produces documents from a server or backup tapes, that should be sufficient to refute a spoliation claim that alleges the documents were not also produced from a particular source, such as an individual’s personal computer.

Also, verify that concerns about a client’s ESI actually involve potentially relevant documents; otherwise, no spoliation claim exists. Finally, aggressively pursue fees and costs against parties who are too quick to allege spoliation in hopes of intimidating the other side into settlement without considering any other reasonable explanations.

Clearly, the FRCP amendments were intended to bring about positive changes, and those changes are starting to happen. Businesses are starting to spend the resources necessary to better organize and preserve their electronic records. Attorneys are starting to become more familiar with their clients’ IT systems and the intricacies of e-discovery. Judges, based on recent e-discovery opinions, are starting to recognize the unique problems inherent in the preservation, search and production of ESI.

Now, more than ever, it is critical that e-discovery evolve into something more than just a powerful game of gotcha, in order to achieve the true goals of the FRCP amendments.

Wes Billingsley is of counsel at Thompson & Knight in Dallas.