Last year, Professor A. Benjamin Spencer wrote an article that has been published in the Fordham Law Review titled The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, 79 Fordham L. Rev. 2005 (2011). In the article, Professor Spencer proposed a change to Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The amendment would clarify pre-litigation preservation obligations and allow a prospective litigant to petition the court for a preservation order before actually filing suit.
Last week, the New York State Bar Association met for its annual meeting. One of the panels, titled “Bridging the E-Discovery Gap Between Bench and Bar” discussed the issue of preservation and, more specifically, Professor Spencer’s proposed amendment. The panel of nine included five sitting judges in New York.
This is an upcoming and interesting debate that will only become more relevant in this age of digital communication and information. Congratulations to Professor Spencer for being at the forefront of the issue.