By its nature, Electronically stored information ("ESI") has a tendency to become voluminous and can had a profound impact on the cost of litigation and the issues and obligations faced by litigants. Federal Rule of Civil Procedure 37(e) is intended to provide a safe harbor from sanctions for the loss of ESI resulting from "the routine, good-faith operation of an electronic information system." Since the rule was put in place in 2006, courts have applied very different analytical frameworks and standards when considering requests for sanctions for lost ESI. Because of the problems created by the inconsistency and uncertainty of the rule's application, including concerns that parties would be held to a standard that required the over-preservation of ESI, the old rule has been scrapped and a revised version of Rule 37(e) goes into effect on December 1, 2015.
Do "tailored remedies" always fit? The doctrine of spoliation recognizes that "a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003). Judges should "impose the least severe sanction necessary to remedy the prejudice to the non spoliating party," which provides latitude to impose the sanctions proportionate to the nature of the spoliation. See Keene, 449 Mass. at 235; Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (2002). To the extent that destroyed evidence merely prejudices, but does not foreclose, another party's ability to prosecute or defend a claim in the litigation, certain evidence may be excluded as a result. Fletcher, 437 Mass. at 550.