In the recent patent infringement case Neonatal Product Group Inc. v. Shields, the third-party counterclaim defendants responded to discovery requests that much of their responsive electronically stored information (ESI) no longer existed for a variety of reasons, including because of the way it was stored, a computer crash, and unstable cloud-based servers.
Although the court granted the motion to compel regarding certain requests, it also recognized that ESI that no longer exists cannot be produced. But the court also instructed the counterclaim defendants to do a more thorough search and provide their evidence preservation process to the defendant.
ARMA International would point out that these issues have often resulted in severe fines or penalties; this ruling may be an indication that courts are gradually moderating the consequences of failure to produce evidence. The revisions to the Federal Rules of Civil Procedure Rule 37, which are expected to take effect in December, may have played a part in this decision.
That said, it is still advisable to implement strong recordkeeping and information governance programs to ensure that evidence is properly preserved and that the normal course of business is not hampered by missing or incomplete information.
If you are unsure of or think there may be some holes in your organization’s IG and litigation support strategy, the following resources may be of assistance: