Amendments to FRCP 37(e) – sanctions

Full text of FRCP 37: https://www.law.cornell.edu/rules/frcp/rule_37

(e) Failure to ProvidePreserve Electronically Stored Information. Absent 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.If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

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HM Electronics, Inc. v. R.F. Technologies, Inc. – ediscovery sanctions case

Timeline of HM Electronics v. RF Technologies

E-discovery quotes from Committee Opinion and HM Electronics:

“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.”— Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar

“Federal courts do not require perfection in ESI discovery.” HM Electronics at 27, citing The Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F.Supp.2d 456, 461 (S.D.N.Y.).

“Perfection in preserving all relevant electronically stored information is often impossible,” and “‘[t]his rule recognizes that reasonable steps’ to preserve suffice; it does not call for perfection.”).  Advisory Committee Notes to proposed new Rule 37(e)

“The touchstone of discovery of ESI is reasonableness. (Id.). However, as one court noted, If litigants are to have any faith in the discovery process, they must know that parties cannot fail to produce highly relevant documents within their possession with impunity. Parties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents. Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448, 463 (S.D. Ohio 1995). “Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Haeger v. Goodyear Tire & Rubber Co., –F.3d–, 6 n.1 (9th Cir. July 20, 2015) (quoting Haeger v. Goodyear Tire and Rubber Co., 906 F.Supp.2d 938, 941 (D. Ariz. 2012)).

Resources:

Annotated opinion and docket sheet (download the PDF and view bookmarks to see my annotations): Annotated HM Electronics Inc v RF Technologies Inc – magistrate judge order on sanctions (2015 WL 4714908,  S.D. Cal. No. 12cv2884–BAS–MDD)

Docket sheet from Pacer, downloaded November 12, 2015: 2015-11-12 HM electronics docket sheet

Northern District of California E-Discovery Guidelines

Better PowerPoint and article design for better results

Great list from Ken Lopez of A2LC of tips for better PowerPoint design and study about better results.

 

October 27, 2015 Washington Post article – Good design causes readers to pay more attention to news articles.

Reynolds school of Journalism article on good article design cited by Lopez in his blog post: https://www.rjionline.org/stories/results-are-in-a-cleaner-webpage-design-equals-more-engaged-readers