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LEGAL TALK NETWORK POSTS NEW DIGITAL DETECTIVES PODCAST
September 30, 2014
In this episode of Digital Detectives, Sharon Nelson and John Simek interview ESI preservation expert James Kurz about how Rule 37(e) works and what the consequences are for the future of ESI preservation. Kurz explains that the rule, which only deals with ESI, proposes a three part test before considering spoliation issues: the ESI should have been preserved in the anticipation or conduct of litigation and is lost, the ESI was lost because the party failed to take reasonable steps to preserve the information, and the missing information cannot be restored or replaced with additional discovery. If this test is passed, the federal court may then impose remedies, or if intention is proved, order more serious sanctions. He explains that Rule 37(e) will make a more homogenous legal process for e-discovery, and will solve some of the controversy surrounding the costs of ESI preservation and e-discovery for businesses. Although the rule faces the Judicial Court, Supreme Court, and then Congress, Kurz believes it will go through and be effective in December 2015.
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