Page 4 - EDiscovery

S4 | MONDAY, MARCH 16, 2015 | E-Discovery
| NYLJ.COM

Stay Clear
to proposed changes to the Federal Rules

seeking to protect litigants who make rea-
Form Preservation Letters
sonable preservation efforts. The current
Of state and the proposed amendments are
discussed below.
The current state: Reasonableness may
not be enough. Until the pending amend-
ments to the Federal Rules are adopted,
sanctions may result even in situations where
An active partnership between attorney and client is required.
reasonable preservation efforts were taken.

The very recent decision in Dorchester1 makes
the point.
In Dorchester, prior to iling the action, the
plaintiff and its attorney took several rea-
sonable steps to preserve relevant records.
They gathered all hard copy and electronic
documents in Dorchester’s possession that
related to the dispute. Dorchester’s principal

initially saved all of the electronic documents
on a personal computer, and then transferred
those electronic documents to the hard drive
of a new personal computer. Later, the prin-
cipal’s computer crashed, and he asked his
brother-in-law for help; despite lacking any
formal computer training, the brother-in-
law advised that the computer was lost and
the principal needed a new machine. The

principal relied on this advice and foolishly
destroyed the computer without irst consult-
ing a computer specialist to see if the data
could be recovered.
The court in Dorchester found that despite
reasonable efforts, Dorchester breached the
duty to preserve by destroying the computer
without alerting its adversary or the court,
which denied the adversary the opportunity

to retain an expert who may have been able
to retrieve the documents.
The district court judge issued a mandatory
adverse inference, holding the “fact inder
will be compelled to infer that Dorchester
destroyed electronic evidence, including
emails and metadata, favorable to BRJ’s claim
that it did not participate in the transactions

at issue in this action.”2
The future state: Proposed changes to
the Federal Rules. Rule 37(e) addresses
sanctions for failure to preserve discoverable
information. There is a proposed amendment
to Rule 37(e) that seeks uniformity among
courts in regard to the level of culpability
required and to protect litigants from costly
over-preservation actions. The Discovery

Subcommittee of the Advisory Committee
on Civil Rules noted the dual purpose of
the proposal:
OCK
One has been to establish greater uni- GST
formity in the ways in which federal BI
courts respond to a loss of ESI. The
courts agree unanimously that a duty to Severe sanctions are placed on litigants attorney and the client to address the client’s
BY JOSEPH FRANCOEUR
who fail to cease the destruction of docu- individual retention protocols, requirements,
preserve ESI arises when a party reason- ments pursuant to retention policies once capabilities and limitations. As such, an attor-
ably anticipates litigation. But they differ A
signiicantly in the approaches taken after ttorneys often ask other attorneys for there is a reasonable likelihood of future ney cannot rely on any letter, much less a
inding a loss of ESI that should have been advice on how to assist their clients in litigation or a governmental investigation. form letter. Courts have held that without
preserved. A new rule that illuminates complying with the duty to preserve
Sanctions are imposed not only for willful doing more to engage the client, the attorney
the purposes and methods of respond- electronically stored information (ESI) and bad-faith destruction but also for actions such simply cannot accurately represent that a
ing to the loss can do much to promote regularly ask to see a “form” preservation as a failure to suspend auto-deletion of email. reasonable effort has been made to locate,
uniformity and to encourage desirable letter. Many attorneys mistakenly believe that Much-needed proposed amendments to the preserve, review and produce relevant docu-
judicial responses.
such a form letter is a good start in satisfy- Federal Rules of Civil Procedure to limit sanc- ments.
ing their preservation obligations. However, tions to willful conduct exist, but have not yet
The other goal has been to relieve the
pressures that have led many potential lit- no such letter exists—and for good reason.
been adopted. Further, sanctions may extend ‘Reasonable’ Preservation Eforts
igants to engage in what they describe as beyond costs and attorney fees to include
massive and costly over-preservation . .3
adverse inference jury instructions and even Currently, litigants who fail to meet their
JOSEPH FRANCOEUR, a partner at Wilson Elser the granting of judgment or dismissal.
preservation responsibilities—even where
Proposed Rule 37(e) limits remedies to the Moskowitz Edelman & Dicker, can be reached at Compliance with the duty to preserve reasonable efforts to preserve are under-
extent needed to cure the loss of information,
[email protected].
requires an “active partnership” between the
taken—are subject to sanctions. This has led