Commercial Litigation and Arbitration

Electronic Discovery Sanctions — Rule 37(f) — Restoration of Backup Tapes as Sanction

The defendant in Disability Rights Council v. Washington Metropolitan Transit Auth., 2007 U.S. Dist. LEXIS 39605 (D.D.C. June 1, 2007), failed to instruct employees to retain potentially responsive emails. No litigation hold was put into effect until more than two years after the litigation commenced. Until the hold was put into effect, emails were automatically deleted after 60 days. Magistrate Judge John Facciola held that this sort of inexcusable auto-deletion was not insulated from sanction by Fed.R.Civ.P. 37(f) because ‛it is clear that this Rule does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation“ after the action has commenced. As a sanction, the Court ordered that the defendant retrieve and search information contained backup tapes that would otherwise have fallen in the category of ‛not reasonably accessible“ data, observing:

While the newly amended Federal Rules of Civil Procedure initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost, I am anything but certain that I should permit a party who has failed to preserve accessible information without cause to then complain about the inaccessibility of the only electronically stored information that remains. It reminds me too much of Leo Kosten's definition of chutzpah: "that quality enshrined in a man who, having killed his mother and his father, throws himself on the mercy of the court because he is an orphan."

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