FEDERAL COURTS LAW REVIEW -- 2006 Fed. Cts. L. Rev. 7
DEFINING CULPABILITY:
THE SEARCH FOR A LIMITED SAFE HARBOR IN ELECTRONIC DISCOVERY
By Thomas Y. Allman
Abstract
Decisions on when and how to preserve electronically stored information
for potential discovery are often challenged by spoliation sanction
motions. Rule 37(f) will provide relief from rule-based sanctions
for routine losses due to operations of information systems when
a party has exercised "good faith" in planning for and
executing preservation obligations. There will be cases where losses
to e-discovery from the operation of information systems are not
sanctionable even though preservation obligations have been triggered..
To this extent, Rule 37(f) can be seen as modifying and limiting
the rule of Residential Funding in a narrow class of cases and as
providing guidance to those who, acting in good faith, seek to develop
and implement corporate policy. The same result should be reached
in all cases whether a court is exercising rule-based or inherent
sanctioning power, absent exceptional circumstances, since the Advisory
Committee carefully balanced the competing interests in this area.