The Roberts Court and Lost ESI

Abstract

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September, 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (esi). These changes address the duties of preserving some esi for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on esi, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost esi in federal civil actions. This article reviews the history behind, and all the current, FRCP provisions on esi, particularly the Rule 37(e) changes. It also reviews the proposed esi changes to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable esi. These reviews are accompanied by an examination of state civil procedure laws on presuit and postsuit esi losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either presuit or postsuit esi losses impacting pending civil actions. All this will then serves as the basis for exploring significant issues on lost esi in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between esi and nonesi, as well as between varying forms of esi; the challenges in pursuing state spoliation claims in related federal civil actions; and, the problems arising when discoverable esi is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost esi that would prompt greater justice, efficiency and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for presuit esi discovery and creating new avenues for presuit protective orders on behalf of those possessing or controlling relevant esi, perhaps modeled a bit on the recent Arizona Civil Procedure Rule 45.2.