Catholic University Law Review


Robert Keeling


Courts and drafters of the Federal Rules of Civil Procedure have struggled to define a defendant’s duty to preserve electronically stored information for upcoming litigation. The current standard creates an unworkable standard. Defendants, especially corporations, are tasked with preserving immense amount of data before a suit is even filed. The costs, both financial and personnel, of complying with the current system are substantial. What’s more, defendants face serve sanctions, including hefty fines and adverse inference instructions, if they fail to preserve all the necessary data.

The lack of consistency across the Circuits as well as the substantial costs that under the current system demonstrate that it is unworkable. Not only is it unworkable, but it’s a huge departure from the traditional common law duty to preserve evidence for litigation. Under the common law duty, a defendant was required to preserve evidence when a suit was filed or the defendant knew a suit would be filed soon. Our society should return to this system. It creates a bright line rule to determine when the duty to preserve electronically stored information arises, and it reduces the financial burden on defendants. Our legal system has had to change rapidly to keep up with the Technology Age, but sometimes the best approach is to go back to our tradition.