DEFINING CULPABILITY:
THE SEARCH FOR A LIMITED SAFE HARBOR IN ELECTRONIC DISCOVERY

By Thomas Y. Allman

Abstract

Decisions on when and how to preserve electronically stored information for potential discovery are often challenged by spoliation sanction motions. Rule 37(f) will provide relief from rule-based sanctions for routine losses due to operations of information systems when a party has exercised "good faith" in planning for and executing preservation obligations. There will be cases where losses to e-discovery from the operation of information systems are not sanctionable even though preservation obligations have been triggered.. To this extent, Rule 37(f) can be seen as modifying and limiting the rule of Residential Funding in a narrow class of cases and as providing guidance to those who, acting in good faith, seek to develop and implement corporate policy. The same result should be reached in all cases whether a court is exercising rule-based or inherent sanctioning power, absent exceptional circumstances, since the Advisory Committee carefully balanced the competing interests in this area.

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Table of Contents

I. INTRODUCTION

II. EVOLUTION OF THE SAFE HARBOR RULE

A. The E-Discovery Amendments
B. The Problem
C. Drafting the Rule
D. The Public Comments
E. Final Form: The "Good Faith" Standard

III. APPLYING RULE 37(F)

IV. CRITICISMS AND QUALIFICATIONS

V. CONCLUSION

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