Panel Urges Caution on Sanctions for Failure to Preserve Data

A panel of state and federal judges has voiced concern about the differing standards for the pre-litigation preservation of electronic records by state and federal judges sitting within the 2nd Circuit.

A limited number of federal trial courts favor hard-and-fast rules that mandate sanctions for the failure to preserve electronic documents, according to the report issued by the New York State-Federal Judicial Council.[FOOTNOTE 1]

By contrast, the report notes, many state judges, prefer to apply "a simple reasonableness standard" and to weigh the imposition of sanctions for destruction of evidence on "a case-by-case basis."

After comparing case law in New York and federal courts, the report found that there are potential inconsistencies between state and federal law governing the pre-litigation duty to preserve electronically shared information that could result in inconsistencies in sanctions for the breach of that duty.

"It seems that those inconsistences may lead to different outcomes for litigants depending on whether the lawsuit is in federal or State court. As such, a potential litigant's conduct may, in fact, be treated differently in State and federal court," the report said.

The advisory panel suggests that courts in the two systems could limit confusion by exercising "judicial self-restraint and mutual respect" and by establishing procedures to impose one or the other system's law governing preservation of electronic information.

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Source: law.com
By: Daniel Wise