The No. 1 E-Discovery issue vexing businesses and other organizations today is how far to go in preserving evidence for litigation. Many large organizations are currently over-preserving huge quantities of electronically stored information, a practice they readily admit is a waste of time, effort, and money. This is especially true for those facing the prospect of litigation in which the plaintiffs or the issues are initially difficult to define, such as is often the case with class action and mass action litigation.
In a recent article, we discuss one of the primary drivers for this over-preservation of evidence -- the legal uncertainty created by differing jurisdictional standards for sanctions due to "spoliation," which is the loss of relevant evidence by a party who has a duty to preserve it. There is a deep jurisdictional split on the issue of what culpable mental state is necessary for a court to order a commonly sought spoliation sanction: an adverse inference instruction to the jury that evidence lost would have been helpful to the aggrieved party. Not only are federal jurisdictions split nationally on this issue but in states like Ohio there is a further split between state and federal courts.
The article discusses the standards applicable within the federal Sixth Circuit and the state of Ohio. Included is discussion of Beaven v. United States DOJ, in which the Sixth Circuit Court of Appeals adopted a new federal standard for the jurisdiction. This case may be of particular interest to those involved in class litigation as it involved 106 plaintiffs.
Click here for the Sixth Circuit decision.
