Extract from Kelly Twigger’s article “#CaseoftheWeek Episode 107: Comparing and Contrasting Different Rulings on Prejudice and Intent under Rule 37(e)”
Episode 107, which juxtaposes another ruling for failure to preserve text messages against last week’s case from Episode 106, shows the importance of knowing your jurisdiction and judge and reinforces the need to identify and collect data from mobile devices early in litigation to avoid spoliation and potential sanctions.
Welcome to this week’s episode of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant and the principal at ESI Attorneys. Thanks so much for joining me today.
Our goal, as you know if you join us regularly on the Case of the Week series, is to choose a decision each week and talk about the practice practical implications that it teaches us for anyone who touches the ediscovery process.
I chose this week’s case to juxtapose it against the decision from Fowler on last week’s episode because of the different outcomes by the two judges on both prejudice and intent to under Rule 37(e) in two different factual scenarios where a party failed to preserve text messages from cell phones. I thought it would be worth us analyzing the differences and how the courts are addressing these issues under Rule 37(e). And this one’s going to be interesting.