Featured Guests
James Kurz

James Kurz is partner in the Alexandria VA law firm of Redmon, Peyton & Braswell LLP.  Formerly a litigation...

Your Host
Sharon D. Nelson

Sharon D. Nelson is president of the digital forensics, information technology, and information security firm Sensei Enterprises. In addition...

John W. Simek

John W. Simek is vice president of the digital forensics and security firm Sensei Enterprises. He is a nationally...

In 2006, the Federal Rules of Civil Procedure rule-makers developed and put into practice amendments dealing with electronically stored information (ESI) and e-discovery. However, most of those involved believed these amendments did not adequately deal with lost or missing ESI or “the spoliation issue.” In 2014 the rule-makers proposed Rule 37(e), which deals with the issue of spoliation equally across all federal courts, resolving the issue of inherent authority, or judges making decisions individually for each case. What are these changes and how will they affect the way businesses deal with e-discovery and data preservation?

In this episode of The 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.

James Kurz is a partner in the Alexandria VA law firm of Redmon, Peyton & Braswell LLP. His practice focuses on business litigation, including computer, software, and communications technologies cases. He also has an emphasis in the challenge of electronic discovery and the issues of information governance and co-wrote the white paper The Long-Awaited Proposed FRCP Rule 37(e), Its Workings and Its Guidance for ESI Preservation.

Special thanks to our sponsor, Digital WarRoom.

Brought to You by
Episode Details
Published: September 24, 2014
Podcast: Digital Detectives
Category: e-Discovery , Legal News , Legal Technology
Podcast
Digital Detectives
Digital Detectives

Sharon D. Nelson and John W. Simek invite experts to discuss computer forensics as well as information security issues.

Listen & Subscribe
  Apple Podcasts
  Google Play
More Episodes
06/26/18
Is Working with Virtual Assistants Putting your Law Firm in Danger?

Tom Lambotte talks about virtual assistances and how involving them could cause data dangers and what lawyers can do to protect themselves.

05/30/18
The FBI’s Access to iPhone Data: Apple Fights Back

Nate Cardozo explains the FBI’s stance on encryption, the First Amendment issues involved, and speaks on the implications of the FBI vs Apple San...

04/23/18
Fastcase’s Artificial Intelligence Sandbox

Ed Walters talks about AI Sandbox, Fastcase’s new artificial intelligence initiative that aims to encourage firms’ experimentation with AI.

03/29/18
Ethical Misadventures in E-Discovery

Sharon Nelson and John Simek talk about the most common reasons lawyers run into e-discovery ethics issues, which include social media, Yelp reviews, document...

02/28/18
Cyber Insurance: Expensive, Complicated, and Necessary

Judy Selby talks about what cyber insurance covers, the different types of coverage, and why it’s an important part of a legal business.

01/30/18
What Makes a Preservation Letter Presidential

Craig Ball shares what it’s like to have the lawyers of the President of the U.S. use your words in one of his preservation...