Trials & Litigation

Is a new federal discovery rule needed? Fearful of sanctions, some companies don't discard documents

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Fearful of adverse consequences if they inadvertently discard electronic documents that are deemed to be relevant in litigation, some of the biggest companies in the U.S. are simply saving all documents, including email sent via employees’ electronic devices.

A minority of federal courts say companies can be sanctioned even if they discard documents without intending to. All allow sanctions, which can mean the loss of a big case, when documents are intentionally destroyed. So companies including Exxon Mobil Corp. and Microsoft Corp. are asking the federal Judicial Conference to recommend a new rule that would provide uniform standards for document retention and allow sanctions only when documents are destroyed willfully or in bad faith, reports the Wall Street Journal (sub. req.).

If the Judicial Conference approves the idea, it would be up to the U.S. Supreme Court to decide whether to adopt the new rule.

Those who represent plaintiffs in such cases say current law doesn’t need to be changed.

“You don’t have to preserve anything that you don’t have a legal obligation to preserve,” says civil-rights attorney Jennifer Klar Klar. “What the companies are essentially saying is, ‘You may behave negligently and not be punished.’”

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