Lost ESI Under the Federal Rules of Civil Procedure

Authors

Jeffrey A. Parness, Northern Illinois University College of LawFollow

Abstract

Current Issue

Volume 20, Number 1 – The Privacy, Probability, and Political Pitfalls of Universal DNA Collection

Meghan J. Ryan 20 SMU Sci. & Tech. L. Rev. 3 Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold standard” in criminal cases because, unlike eyewitness testimony, bite-mark evidence, hair analysis, and the like, it is considered nearly infallible. This potency of DNA evidence has led to suggestions that we, as a nation, should magnify the power of DNA by increasing the size of DNA databases. Several of these proposals have gone so far as to propose that we should collect DNA from every single American–that there should be universal collection of DNA. This article explains that, while the universal collection of DNA may be alluring, it imposes greater privacy burdens than typically suggested and may be less useful than one might imagine. Depending on whether individuals’ DNA profiles or samples are stored, and how they are analyzed, this may potentially provide the government–and other actors–with an unprecedented amount of private information about ordinary Americans. Further, because we live in a system with limited resources, investing in the universal collection of DNA will likely result in scaling down law enforcement resources elsewhere, such as by reducing the number of professional crime scene investigators or police officers on the street. These accompanying events will likely detract from any anticipated increase in crime-solving resulting from the universal collection of DNA and will likely overcome any progress made on that front.

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Lost ESI Under the Federal Rules of Civil Procedure

Jeffrey A. Parness 20 SMU Sci. & Tech. L. Rev. 25

In 2006, Federal Rule of Civil Procedure (FRCP) 37(e) came into effect, declaring that lost electronically stored information (ESI) could not prompt “sanctions … on a party” absent “exceptional circumstances.” Sanctions were limited to where the loss resulted from “the routine, good-faith operation of an electronic information system.” Effective December 1, 2015, Rule 37(e) now contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI arising from a party’s failure “to take reasonable steps to preserve,” where the lost ESI “should have been preserved in the anticipation or conduct of litigation.” For more culpable conduct, the new rule contemplates possible sanctions. The rule was amended in 2015 because the 2006 norm had “not adequately addressed the serious problems resulting from the continued exponential growth in the volume” of ESI and because it had prompted in the federal circuits “significantly different standards for imposing sanctions or curative measures on parties who fail to preserve” ESI. The 2015 rule incorporated only some of the 2013 recommended amendments to FRCP 37(e). This article will first review the basic features of the old and new FRCP 37(e), as well as their place amongst other FRCP and judicial precedents on information preservation in anticipation of and during federal civil litigation. It will then comment on some likely challenges posed to those utilizing or affected by the new federal rule on lost ESI.

Recommended Citation

Jeffrey A. Parness, Lost ESI Under the Federal Rules of Civil Procedure, 20 SMU Sci. & Tech. L. Rev. 25 (2017)