SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

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824 DUKE LAW JOURNAL [Vol. 60:789 VI. RULE 37(E)’S SAFE HARBOR PROVIDES LIMITED PROTECTION Rule 37(e), adopted on December 1, 2006, contains a safe harbor for certain conduct relating to the preservation and production of ESI. The Rule provides: “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.” 151 The drafters intended the rule to provide only “limited protection against sanctions.” 152 Its purpose was to protect against sanctions arising solely from the loss of ESI through the routine operation of electronic systems that automatically discard information. 153 The rule was never intended to provide protection for all manner of missteps in the broad range of e-discovery activities performed by parties and their counsel—such as failure to search and failure to produce on schedule. Despite its limited scope, the proposed rule generated controversy concerning the appropriate standard of culpability that would support or preclude sanctions. 154 Proposed standards included 151. FED. R. CIV. P. 37(e). When adopted, the safe harbor provision was contained in Rule 37(f). The 2007 edition of the Federal Rules moved the safe harbor provision from Rule 37(f) to Rule 37(e) with no changes to the rule’s text. Compare id., with FED. R. CIV. P. 37(f) (2006). 152. ADVISORY COMM. ON THE FEDERAL RULES OF CIVIL PROCEDURE, REPORT OF THE CIVIL RULES ADVISORY COMMITTEE 83 (May 27, 2005), available at http://www.uscourts.gov/ uscourts/RulesAndPolicies/rules/Reports/CV5-2005.pdf. The Committee noted that the proposed new rule would afford “limited protection against sanctions” for the loss of information as a result of the routine operation of an electronic information system. The Committee recognized (1) that automated features in many electronic systems “automatically create, discard, or update information without specific direction from, or awareness of” system users; (2) that “such automatic features are essential to the operation of electronic information systems”; and (3) that “suspending or interrupting these features can be prohibitively expensive and burdensome.” Id. The Committee noted that electronic information systems present issues for businesses that are absent from traditional, paper-based systems and that efforts to suspend automatic electronic processes risk disrupting business operations: “[i]t is unrealistic to expect parties to stop such routine operation of their computer systems as soon as they anticipate litigation.” Id. 153. Id. at 83. 154. See id. at 83–90 (discussing the proposed rule and the public commentary surrounding it). The first draft of the proposed rule published by the Advisory Committee “barred sanctions only if the party who lost electronically stored information took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action.” Id. at 88. The Advisory Committee noted that this proposed version adopted a negligence standard, and the Committee also invited comment on whether the rule should instead set forth a standard of conduct which would bar sanctions unless the party “recklessly or intentionally failed to preserve the information.” Id.
2010] SANCTIONS FOR E-DISCOVERY VIOLATIONS 825 negligence, recklessness, and intentional conduct. The Advisory Committee ultimately adopted what it deemed to be an “intermediate” culpability standard, providing “protection from sanctions only for the ‘good faith’ routine operation of an electronic information system.” 155 From Rule 37(e)’s promulgation on December 1, 2006, until January 1, 2010, we identified only thirty federal court decisions citing the safe harbor provision. Three of these cases did not relate to discovery of ESI in civil cases, as two involved paper documents 156 and one was a criminal case. 157 Of the remaining twenty-seven cases, we identified, at most, seven and one-half cases that invoked Rule 37(e) to protect a party from sanctions. In five of those cases, the court invoked Rule 37(e) to deny requested sanctions. 158 In two cases, the court mentioned Rule 37(e) and denied sanctions, but it is unclear 155. Id. at 84–85. 156. Mohrmeyer v. Wal-Mart Stores E., L.P., No. 09-69-WOB, 2009 WL 4166996, at *3 (E.D. Ky. Nov. 20, 2009) (refusing to award sanctions against the defendant for discarding hardcopy maintenance logs “as a result of its routine, good-faith records management practices long before [it] received any notice of the likelihood of litigation” and finding Rule 37(e) inapplicable because the documents were not ESI, but citing the Rule “[b]y analogy”); United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 270 n.24 (2007) (addressing the spoliation of paper government-contract files and citing Rule 37 in a footnote to illustrate the availability of sanctions absent proof of bad faith). 157. United States v. O’Keefe, 537 F. Supp. 2d 14, 22 (D.D.C. 2008) (citing Rule 37(e) by analogy in a criminal case). 158. Sue v. Milyard, No. 07-cv-07711-REB-MJW, 2009 WL 2424435, at *2 (D. Colo. Aug. 6, 2009) (denying sanctions for the destruction of evidence when video footage stored on the defendant’s hard drive was automatically recorded over within five to seven days due to the normal operating process of the camera’s computer system, which erased the footage before the plaintiff made a request to preserve it); Se. Mech. Servs., Inc. v. Brody (Brody I), No. 8:08-CV- 1151-T-30EAJ, 2009 WL 2242395, at *3 (M.D. Fla. July 24, 2009) (holding that no spoliation sanction was warranted because the overwriting of backup tapes involved no bad faith and was part of the company’s routine document-management policy); Gippetti v. United Parcel Serv., Inc., No. CO7-00812 RMW (HRL), 2008 WL 3264483, at *1, *3–4 (N.D. Cal. Aug. 6, 2008) (rejecting a request for spoliation sanctions against a company that discarded tachograph records showing a vehicle’s speed and the length of time it was moving or stationary, because the company’s practice was to preserve the records for only thirty-seven days due to the large volume of data and the company had no notice that the specific records sought should have been preserved); Escobar v. City of Houston, No. 04-1945, 2007 WL 2900581, at *18–19 (S.D. Tex. Sept. 29, 2007) (rejecting an adverse-inference instruction when the defendant destroyed documents deemed not responsive to the document requests and the party seeking sanctions failed to show the relevance of the records sought or that destruction was in bad faith); Columbia Pictures Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419, at *14 (C.D. Cal. May 29, 2007) (holding that a party’s failure to retain website server log data, stored temporarily in RAM, was not sanctionable due to the party’s “good faith belief that preservation of data temporarily stored only in RAM was not legally required”).
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SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

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