Extract from H. Christopher Boehning and Daniel J. Toal's article "‘Staggering’ Spoliation Leads to Case Terminating Sanctions"
In the aftermath of notable sanctions rulings that roiled the discovery waters, the 2015 amendments to the Federal Rules of Civil Procedure introduced a new Rule 37(e), designed to provide litigants with some clarity and comfort that severe sanctions for spoliation of electronically stored information (ESI) were available to courts only when a party had failed to take reasonable steps to preserve such information. Since then, courts have been reluctant to find discovery misconduct worthy of severe punishment either under Rule 37(e) or Rule 37(b), which allows courts to issues sanctions against parties for failure to comply with a court order.
In a recent decision, though, a district court found some of the defendants’ actions taken while under a duty to preserve indicative of intentional spoliation, including the company and CEO’s use of ephemeral messaging, the failure to disable auto-deletion of emails, and the reformatting and other spoliation of devices allegedly used to transfer trade secret information. Citing both Rule 37(b) and Rule 37(e), the clearly frustrated court issued case terminating sanctions for this “staggering” discovery misconduct.
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