Rick Fahr May 10, 2016, 9:35am


PHILADELPHIA - Years in the making, an updated Rule 37 of the Federal Rules of Civil Procedure met one of its first tests recently before a federal judge in Philadelphia.

The updated rule raises the standard regarding the keeping of electronically stored information (ESI), such as emails. Now, the intent to hide or destroy evidence must be proven.

In a test of the rule, Judge Gene Pratter of the U.S. District Court for the Eastern District of Pennsylvania refused to sanction plaintiffs in Accurso v Infra-Red Services Inc. after the defendants asked for an adverse inference, claiming that the plaintiff had suppressed or destroyed electronic documents related to the case.

An adverse inference amounts to an instruction from the judge to the jury that they should consider claims concerning missing documents to be accurate.

The case focused on the plaintiff’s allegation that his former employer did not comply with the Employee Polygraph Protection Act. In a pre-trial motion, the defendants claimed that the plaintiff had either lost or destroyed evidence. They asked for an adverse inference.

The judge found that the defendants had not proven that any documents had been affected nor had the plaintiff taken any bad faith action to hide or destroy evidence.

In denying the defendant’s motion, Pratter said, “[t]he new rule, however, makes explicit that an adverse inference is appropriate only on a finding that the party responsible for the destruction of the lost information acted with the intent to deprive another party of access to the relevant information See Rule 37(e)(2)(A).”

How to deal with electronic documents has become more important as commercial entities, law firms and health care organizations, for example, evolve their record-keeping processes from paper files to data stored on hard drives and servers.

For perspective on how much data flows electronically, The Radicati Group Inc. of Palo Alto, Calif., found that in 2015, online users sent and received more than 205 billion emails per day. The consultants expect that number to grow to 246 billion per day in less than four years.

Stephen Burbank, the David Berger Professor for the Administration of Justice at University of Pennsylvania Law School, told Pennsylvania Record that the rule implements a higher threshold for evidence of bad faith and tightens requirements for an adverse inference finding.

“It will restrict the power of the court to impose that time of extreme sanction, confining it only to a situation where there is intent to deprive a party to information,” he said in a telephone interview.

The rule also nudges all parties involved in litigation to investigate whether ESI has truly been lost or destroyed or is available from another source. For example, an email involves a sender and a receiver. If the receiver’s copy has been deleted, the sender’s may be available. Therefore, that information isn’t “lost.”

Burbank noted that members of the legal community have not been unified in their thinking on whether the standard for sanction should be an overt act.

“Some people thought that an adverse inference instruction, as a sanction, ought to be available in cases of gross negligence and not just intentional misconduct, but that view lost out,” he said.

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