Extract from Kelly Twigger’s article ” Why Cases Like This Demand Rule 37 Reform – Enough with Wrist Slaps for Intentional Spoliation”
Introduction
Welcome to our Case of the Week segment on our Meet and Confer podcast. My name is Kelly Twigger. I am the Principal at ESI Attorneys, a law firm for ediscovery and information law, as well as the CEO at Minerva26, where I take the insights from my 28 years as a discovery strategist and litigator and, together with my team, provide a strategic command center for litigators to leverage the power of ESI. Thanks so much for joining me today.
Our Case of the Week segment on the Meet and Confer podcast is brought to you by Minerva26 in partnership with ACEDS. On this segment, I analyze a recent decision on discovery issues involving ESI and talk about what you should take away from the court’s decision and why.
It’s no secret that our rules governing discovery are not keeping pace with technology. It’s a struggle to fit a square peg in a round hole. Judicial decisions interpreting those rules in the context of today’s technology, and the electronic evidence that we create using that technology, acts as our guide to how we need to advocate for clients. As always, judicial decisions are as good as the facts and arguments presented to the court. So, part of what we talk about here is the lawyering — the good, the bad, the ugly.
Our decision today highlights a question that we keep seeming to never to get the answer to — exactly how bad does your conduct have to be in discovery for the court to order a terminating sanction under Rule 37(e)(2)?
