TSC logoBy Karin Jenson, national leader, E-Discovery Advocacy and Management Team and Co-Chair of The 2016 Sedona Conference Institute And Jacqueline K. Matthews, BakerHostetler associate

Every year, The Sedona Conference Institute keeps us ahead of the e-discovery curve with panels such as the famous Case Law Update and Judicial Roundtable.  This year’s Institute will be devoted to the changes in the Federal Rules of Civil Procedure and will include panels on the new Rules 26, 34 and 37(e). The new Rules are already generating significant case law, and there will be even more by the time we meet in San Diego on March 17-18.  In the coming weeks, we will be posting brief summaries of some of these recent cases. For a more in-depth look at the new rules and how to retool your practice, register for The Sedona Conference Institute.  Meanwhile, here’s a summary of CAT3, LLC v. Black Lineage, Inc., No. 14CIV5511ATJCF, 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016):

A main goal of the newly revised Federal Rule 37(e) is to provide a uniform standard for the imposition of sanctions when electronically stored information is lost because a party failed to take reasonable steps to ensure preservation.  While the Advisory Committee Notes state that the new Fed. R. Civ. P. 37(e) “forecloses reliance on inherent authority or state law to determine when certain measures should be used,” the Southern District of New York recently stated in dicta that even where the requirements of Rule 37(e) were not met, the court could nevertheless use its inherent authority to impose sanctions for the bad faith spoliation of evidence.

The facts of Cat3, involving intentional alteration of domain names of senders and recipients of key emails,  were sufficient for the court to conclude that sanctions were warranted both under Rule 37(e)(1) and 37(e)(2). But it remains to be seen whether, when confronted with a case that does not fit neatly into the Rule 37 framework, courts will invoke inherent authority.