Robert D. Finkel, a shareholder in Buchanan's Litigation section, recently authored an article for Law360, titled "A Pa. Court's Take On Rule 37(e) And Nonelectronic Info"
In one of the first cases applying the 2015 amendments to the federal discovery rules that went into effect on Dec. 1, 2015, Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania issued an order and memorandum opinion on March 11, 2016, denying the defendants’ motion in limine seeking a negative inference based upon a claim of spoliation of evidence arising out of the failure to preserve emails. See Accurso v. Infra-Red Services Inc., No. 13-7509, 2016 (E.D. Pa. March 11, 2016).
This case is significant because it recognizes that new Rule 37(e)(2)(A) requires not only that electronically stored information is lost and cannot be replaced but the party seeking the adverse inference must present evidence of actual destruction or suppression of the information by the other party with the intent to deprive the moving party of access. Rule 37(e), by its express terms, only applies to electronically stored information. Thus, neither this case nor the amendments to Rule 37(e) change the law with respect to the loss or destruction of nonelectronically stored information.
The full article can be found here (subscription required)