Apple, Terrorism & Electronically Stored Information In Today’s Advanced Technological Age

By David J. Oberly, Esq. of Marshall Dennehey Warner Coleman & Goggin Cincinnati Bar Association Report, June 2016 (Cover Article) I. Introduction The newest big data battle emerged recently when Apple was ordered by a federal court in California to assist the FBI in bypassing security features to access electronically stored informationaEUR"commonly known as ESIaEUR"contained on the mobile device of one of the assailants in the recent San Bernardino terrorist attack. This high-profile dispute involving one of the world's most skilled governmental agencies and the largest technology enterprise on the planet highlights and exemplifies the central importance and vital role that ESI plays in today's highly digital age. While garnering much less media attention, similar battles are being fought today in courthouses across the nation between civil litigants seeking to obtain ESI from their adversaries through the course of discovery. Fortunately, the Advisory Committee for the Federal Rules of Civil Procedure has taken note of the fundamental role that ESI plays in all aspects of our lives today, and its imperative and indispensable function in civil lawsuits, where a select few pieces of electronic evidence can make or break a litigant's ability to establish his or her case. As a result, as part of the December 2015 amendments to the Federal Civil RulesaEUR"which Supreme Court Chief Justice John Roberts has proclaimed to be a "big deal"aEUR"Rule 37(e) was completely rewritten to provide a framework for the duty of litigants to preserve ESI and a specific, express standard applicable to litigation in the federal courts for determining the appropriate remedies and sanctions where a party fails to preserve ESI. II.Rule 37(e): Preservation of ESI & Sanctions in Connection with Spoliation A. Overview The explosion of technology in recent years has brought about wholesale change to almost every facet of our everyday lives. In the legal world, no aspect of litigation has been impacted more by technology than the area of discovery. In fact, modern technology has had such a profound influence on the discovery process that an entire field of law, known simply as aEURoee-discovery,aEUR? has emerged to address the myriad of issues that arise at the intersection of technology and discovery. Today, e-discovery remains a relatively primitive area of law that presents a minefield of potential perils and traps, even for seasoned litigators. Every attorney has heard horror stories of the draconian sanctions imposed by courts for failing to properly preserve relevant ESI. Oftentimes, the failure to preserve such information was the result of mere carelessness or oversight, and in the absence of even the slightest amount of malice. However, courts in those situations have not hesitated to drop the hammer on offending parties with severe sanctions including adverse inference instructions, monetary penalties, and even the entry of judgments in favor of the aggrieved litigant. To make matters worse, over time the federal courts have developed widely divergent standards for issuing sanctions, resulting in penalty schemes that were vastly varied from court to court. The amendments to Rule 37(e) were designed to address these growing problems and provide a uniform, standard approach to ESI sanctions in federal court. As a result, Rule 37(e) was completely re-tooled to modernize the federal court system's treatment of e-discovery matters, and to more clearly define the scope of responsibility for preserving ESI and remedies for the failure to reasonably preserve electronic information that "should have" been maintained. Rule 37(e) addresses the power of courts to take action and remedy situations where a party neglects to properly retain ESI, and establishes a new framework of requirements that must be satisfied before a court is able to issue sanctions against a litigant resulting from a failure to preserve ESI. The amendments to the Rule are intended to address the consequences flowing from the rapidly expanding volume of electronically stored information and the steep trajectory with which it is increasing. Rule 37(e) does not, however, create a new duty to preserve, but rather codifies the existing common law duty to preserve relevant information when litigation is reasonably foreseeable. In doing so, these amendments were aimed at curtailing the runaway costs of electronic discovery by injecting the concepts of reasonableness and proportionality into the duty to preserve electronic evidence. Revised Rule 37(e) also attempts to ensure that cases are decided on their merits, as opposed to which party can stand to stomach higher discovery expenses. In addition, the rule is also intended to provide a uniform analysis and standard for determining sanctions for violating the duty to preserve ESI across all federal courts. With that said, the Rule does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim. Amended Rule 37(e) can be broken down into three principal aspects: (1) the initial three-part test for determining when the rule is applicable; (2) aEURoeprejudiceaEUR? and the lesser sanctions available to cure prejudice arising out of less malicious failures to preserve electronically stored information; and (3) aEURoeintent to depriveaEUR? and the more severe sanctions available to remedy the most flagrant violations of ESI preservation requirements.

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