The management of electronically stored information (“ESI”) is becoming an increasingly prominent concern for companies, large and small, and their attorneys tasked with managing litigation. Given the exponential growth in the volume of ESI over the past two decades, it should come as no surprise that there has been a parallel increase in the amount of litigation related to the management (and mismanagement) of ESI under the Federal Rules of Civil Procedure.

Click here for a general outline of best practices for companies and their attorneys related to the identification and preservation of relevant ESI through internal document retention policies and the issuance of litigation hold letters. The article, co-authored by Matt Peck and Chris Spiers, first highlights recent case law that illustrates the potential scope and severity of sanctions imposed on parties who fail to adequately identify, collect and preserve relevant ESI under the Rules.

The article then discusses the proposed amendments to Rule 37(e), which, if adopted, would provide a uniform process for the courts to analyze spoliation in the ESI-context and resolve the existing split of authority regarding the culpability required to impose the harshest, case-dispositive sanctions under the current Rules.