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Under Rule 37(e), if a party fails to take “reasonable steps” to preserve ESI, the court may “order measures no greater than necessary to cure the prejudice.” Further, upon finding the party acted “with the intent to deprive another party of the information’s use in the litigation,” the court may take more adverse actions, such as “instruct the jury that it may or must presume the information was unfavorable to the party.” The rule only applies if the information was lost “because a party failed to take reasonable steps to preserve it.” It does not apply when the information is lost before a duty to preserve it arises.
It is important that organizations, including small businesses, be proactive by taking a close look at their current ESI preservation policies, notably, those that concern email preservation to ensure that:
- (1) information retention policies exist and
- (2) those protocols are being properly administered.
Ensuring that policies and protocols are in place is a good start, but more aggressive preservation efforts can be expensive. Further, an ever-increasing volume of email and the devices that generate them makes perfection seem far-fetched. However, doing something is better than doing nothing in this instance. A recent survey conducted by Stroz Friedberg found that nearly 75% of information workers in the US share corporate data via cloud file sharing or personal email accounts. This is partly due to organizations being slow to deliver mobile and collaborative capabilities, but in the absence of policy, users will do what is convenient for them, giving no consideration to what a court may find as negligent. Additionally, considering email usually exists in multiple locations, such as with the sender or with the recipient, and can be archived or backed-up, courts will be driven by the Rule to evaluate whether steps taken to preserve email are adequate.
Although Rule 37(e) is not a new law, amendments to the law provide a healthy reminder that employing proper retention standards for email are imperative. Directors, chief executive officers, lawyers, politicians—anyone in a leadership role—would be well-advised to spend time not only understanding the importance of information governance polices but also to evaluate their current technical capabilities so that users don’t feel the need to bypass company-sponsored information technology (IT) to be productive. Avoid becoming a casualty of Rule 37(e) by incorporating retention standards and good recordkeeping practices rather than standing by for a summons—because by then, it’s too late.
Jamaal Davis is a senior records manager with Savan Group, LLC and is a recognized industry consultant. He has extensive experience developing records processes and working with records systems. He is a US Navy veteran with over 10 years of records management experience in the federal government and private sector. For more information, visit http://savangroup.com or follow @savangroup.
