The rise of numerous and varied forms of Electronically-Stored Information [ESI] has significantly changed the landscape regarding destruction, suppression and oversight of evidence, particularly concerning non-traditional forms of ESI such as Facebook, text messages, and online video.

On December 4, 2015, in a presentation before the Orange County Bar Association Business Litigation section, speakers Hon. Nakamura, Hon. Derek Hunt, and Bill Brown discussed the growth of ESI, best practices in preserving ESI, and the latest case law and guidance concerning spoliation of evidence.

Hon. Nakamura began the discussion with an overview of spoliation causes of action in California state courts. Overall, he noted, the recent trend in California is clear. California appellate courts, through decisions in Strong v. State, 201 Cal.App.4th 1439 (2011) and Rosen v. St. Joseph Hosp. of Orange Cnty., 193 Cal. App. 4th 453 (2011) have narrowed the scope of spoliation causes of action. Under current case law, there is no cause of action for first-party spoliation of evidence. There does, however, still remain a narrow cause of action for third-party spoliation of evidence, if a case presents facts that mirror the situation of Cooper v. State Farm Mut. Auto. Ins. Co. , 177 Cal. App. 4th 876 (2009) (a third party intentionally destroys a piece of evidence important to the underlying case, despite specific promising a party that he will preserve that same evidence).

Bill Brown continued the discussion by highlighting recent changes to the Federal Rules of Civil Procedure concerning ESI. Recent amendment to Rule 37, which became effective on December 1, 2015, create a new standard by which district courts can impose sanctions on parties who fail to preserve ESI. The amendments acknowledge the growing difficulties and costs in preserving vast quantities of ESI, and differentiates between negligent and intentional losses of information. Of note, the new Rule 37 amendment requires a finding of intentional destruction of information relevant to the litigation, before a court can (i) presume the lost information was unfavorable to a party; (ii) issue an adverse inference instruction; or (iii) dismiss the action or enter a default judgment.

Hon. Derek Hunt advised attendees on best practices for implementing a litigation hold and preserving evidence. He also commented on the growing use of strategic preservation letters in litigation. A carefully worded preservation letter, inclusive of ESI, can be a useful way to notify opposing counsel of their preservation obligations ahead of trial. This is not only a good way to preserve evidence, but also provides a valuable record for future spoliation battles.

Overall, all the panelists agreed that ESI was here to stay. There is an every-growing necessity to understand a client’s information technology systems – or hire a third-party specialist who can help. Now that ESI is part of our everyday lives, ignorance of its uses in litigation is no longer an option.