The December 2006 electronic discovery amendments to the Federal Rules of Civil Procedure added a safe harbor in Rule 37(f) (soon to be renumbered 37(e)), which reads:

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.

The plaintiff in Doe v. Norwalk Community Coll., 2007 U.S. Dist. LEXIS 51084 (D.Conn. July 16, 2007), brought suit for a sexual assault suffered at the hands of a faculty member. In February 2004, the Connecticut state police opened an investigation that resulted in his prosecution for fourth degree sexual assault in August 2004. In September 2004, plaintiff’s counsel sent to the defendants a pre-suit demand letter indicating her intent to sue, and suit followed in November 2004. Throughout this period, the defendants failed to suspend the recycling of backup tapes at the defendant College, and decommissioned and scrubbed the hard drives of the alleged culprit and others who left the employ of the College ‛pursuant to normal [] practice.“ On plaintiff’s motion for spoliation sanctions, defendants sought refuge in the safe harbor of Rule 37(f). District Judge Janet C. Hall found Rule 37(f) inapplicable for primarily two reasons:

First, the defendants’ duty to preserve evidence had been separately triggered by the criminal investigation and by the plaintiff’s pre-suit demand letter and, once that duty is triggered, ‛in order to take advantage of the good faith exception, a party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business. Because the defendants failed to suspend it at any time, … the defendants cannot take advantage of Rule 37(f)’s good faith exception.“ Note the Court’s reliance on violation of a duty owed another (the prosecutors) as permitting the inference on the plaintiff’s behalf. Given that the motivation for destruction was factually the same and conceivably higher in the criminal setting (although the prosecution appears to have been directed solely at the individual assailant, not the College), this is reasonable and a valuable holding.

Second, the defendants failed to carry their burden of proof that a ‛system“ actually existed. After the College shifted over to a new server, new emails were preserved for one year, but earlier emails were preserved for six months or less. ‛This Rule … appears to require a routine system in order to take advantage of the good faith exception, and the court cannot find that the defendants had such a system in place.“

Stressing the importance of timely implementing a litigation hold, Judge Hall found ‛the defendants’ failure to place a litigation hold and to preserve emails and hard drives relevant to Doe’s allegations in this case to be at least grossly negligent,“ thus satisfying the state of mind element of spoliation. Adverse inference instruction to be given to the jury.