Federal litigation readiness plan to avoid Spoliation sanctions

The new Federal Rule 37(e) (Federal Rules of Civil Procedure) governs the imposition of “spoliation sanctions” (i.e., remedial measures that judges may impose against a party for failing to preserve potentially relevant evidence) came into effect on December 15, 2015. The Rule 37 (e) aims at (a) harmonizing the federal standards governing spoliation sanctions and (b) issuing serious sanctions to the party which fails to preserve electronically-stored information (ESI) and found guilty for the loss of ESI at issue, in a lawsuit.

The Federal courts have interpreted and applied the Rule in pending law suits. A federal judge in Georgia provided insight to the Rule in a lawsuit in re O’Berry v Turner, 2016 US Dist LEXIS 55714 [MD Ga Apr. 27, 2016, Civil Action No. 7:15-CV-00064-HL]. Plaintiff was driving a vehicle in the right hand lane and Defendant was driving his tractor trailer truck in the left hand lane and both were travelling in the west direction. Without warning or justification, defendant swerved into the right hand lane, striking the vehicle driven by Plaintiff and running the vehicle off of the road and into a light pole. Plaintiff was a passenger in the vehicle driven a driver. At the time of the accident, defendant was operating the tractor trailer truck as an employee on behalf of trucking companies. Plaintiff suffered injuries in the accident and sued the two trucking companies. During discovery, plaintiff sought the truck driver logs which tracks and stores drivers’ miles, GPS coordinates, speeds of travel, and hours by faxing a spoliation letter. However, plaintiff learnt that defendants had inadvertently destroyed the desired ESI and plaintiff moved a Motion for Spoliation Sanctions. The court analyzed Federal Rule 37(e) and observed that defendants’ preservation failure was unreasonable because they only attempted to maintain hardcopy printouts and not the ESI. The court considered the practice of relying on hardcopy printouts as irresponsible and shiftless behavior and censured defendants for not having a written policy in place for preserving ESI. Such printouts were misplaced in the years between the accident and litigation. The court believed that it was not only unreasonable, but also intentional act to deprive plaintiff of the use of ESI at trial and directed the jury to presume the lost information as unfavorable to the defendants’ case and granted plaintiff’s Motion for Spoliation Sanctions.

Accordingly, it is important for modern businesses to formulate a formal and comprehensive ESI preservation and litigation readiness policy for preservation of ESI for future litigation in their own interest so that they can avoid spoliation sanctions under Federal Rule 37(e).

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