Alexander B. Hastings · April 2011
79 GEO. WASH. L. REV. 860 (2011)
The need to address electronic discovery and the questions that surround this issue becomes more pressing with each passing day. The Judicial Conference Committee on Rules of Practice and Procedure (“Judicial Conference”) recently proposed Rule 37(e) to alleviate the worries of parties who fear that they will be subject to sanctions despite their best efforts to maintain electronic information. The Rule provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” This Rule possesses great promise to calm the storm that surrounds electronic discovery. But for the Rule to have its full effect, courts must move away from applying it in an apparently ad hoc fashion and strive for a more unified interpretation of the Rule’s good-faith exception to discovery sanctions.
This Note presents a two-part solution—the Uniform Safe Harbor Standard—that evaluates whether to impose sanctions in light of Rule 37(e)’s safe harbor provision. Specifically, when evaluating a claim for sanctions for destruction of material that occurred before the filing of a complaint, the court should accept a Rule 37(e) defense unless the moving party demonstrates that the opposing party deleted electronic information with the intent to conceal evidence or with a willful blindness to the fact that responsive information would be lost. Once a complaint has been filed, however, the court should accept a Rule 37(e) defense only if the party that destroyed electronic material postcomplaint demonstrates that it acted reasonably in reference to its discovery obligation. The Uniform Safe Harbor Standard introduced in this Note demonstrates that by shifting the burden of proof and the required level of culpability based on the status of the litigation, the court may create a consistent interpretation of Rule 37(e)’s safe harbor defense. In turn, this consistency would provide companies with guideposts to structure their document retention policies and litigation holds.
