Post Process

Everything to do with E-discovery & ESI

Why “Spoliation” is a moving Target

Posted by rjbiii on December 12, 2007

In reading a court opinion on the subject, I discovered a passage which sums up where we are at in wading through the quagmire:

There is, in fact, a division of authority among the circuits on this issue. While the tendency is to view that split in terms of whether vel non a showing of bad faith is required, in fact, the diverging views cover a much broader spectrum. On one end of that spectrum, actually representing a distinct minority, are courts that require a showing of bad faith before any form of sanction is applied. Other courts expect such a showing, but only for the imposition of certain more serious sanctions, such as the application of an adverse inference or the entry of a default judgment. Further relaxing the scienter requirement, some courts do not require a showing of bad faith, but do require proof of purposeful, willful or intentional conduct, at least as to certain sanctions, so as not to impose sanctions based solely upon negligent conduct. On the other side of the spectrum, we find courts that do not require a showing of purposeful conduct, at all, but instead require merely that there be a showing of fault, with the degree of fault, ranging from mere negligence to bad faith, impacting the severity of the sanction. If this continuum were not complicated enough, some circuits initially appear to have adopted universal rules, only to later shade their precedents with caveats. Other times, the difference between decisions appear to be more a matter of semantics, perhaps driven by state law, with some courts, for example, identifying as “bad faith” what others would call “recklessness” or even “gross negligence.”

United Medical Supply Co. v. U.S., 77 Fed. Cl. 257, 266-67 (Fed. Cl., 2007).

The calculus of determining what constitutes spoliation is convoluted due to several factors, including: the different rules between circuits; the two sources of authority for sanctions (a court’s inherent authority to manage its cases and FRCP 37 for a violation of a court order); the discretion given individual courts to manage their own affairs; and the understanding (or lack of it) of IT principles by the Judges or Magistrate Judges who are ruling on issues.

Safety first in approaching collections and processing of data…but reasonableness means one shouldn’t have to go to extremes.

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