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Copyright (c) 2010 Minnesota Journal of Law, Science & Technology
Minnesota Journal of Law, Science & Technology

Article: Information Technology: Sea Change or Status Quo: Has the Rule 37(e) Safe Harbor Advanced Best Practices for Records Management?

Winter, 2010


11 Minn. J.L. Sci. & Tech. 317


Philip J. Favro*



Nothing surprises us anymore when it comes to the world of electronic discovery. Legion are the tales of over-reaching discovery requests, terabyte productions, and astronomical production costs. The 2006 amendments to the Federal Rules of Civil Procedure were supposed to change all that. After all, weren't the amended rules designed to streamline the discovery process, allowing parties to focus on substantive issues while making discovery costs more reasonable? 1 Instead, it seems the rules have spawned more collateral discovery disputes than ever before about preservation and production issues. Is it any wonder that many are questioning whether the so-called ESI amendments 2 are living up to their billing? 3

Despite the overall shortcomings of the amendments, one rule is helping to clarify preservation and production burdens for electronically stored information: Federal Rule of Civil Procedure 37(e). 4 Rule 37(e) provides refuge from sanctions for spoliation of evidence when electronically stored information has been destroyed pursuant to the routine, good faith operation of an electronic information system. 5 Put in layman's terms, litigants may avoid sanctions even though their computer servers delete e-mail and other electronic data according to the server's programmed operation. 6 This so-called "Safe Harbor" is only available when the "routine operation" is carried out in "good faith" such that relevant data is retained after a preservation duty attaches. 7

As first proposed and enacted, the Safe Harbor was championed as a protection against absurd preservation obligations. ...
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