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June 6, 2017 Download PDF
In their latest column on Federal E-Discovery, litigation partners Christopher Boehning and Daniel Toal discuss Hsueh v. N.Y. State Dep’t of Fin. Servs, a notable decision by Judge Paul Crotty of the SDNY on the topic of sanctions for intentional destruction of electronically stored information (ESI). In this decision, Judge Crotty determines that recently amended Federal Rule of Civil Procedure 37(e) is not applicable when a party has intentionally destroyed ESI, even though the plain language of the Rule covers such a situation. Instead, he cites his inherent power to sanction in such situations, adding to a growing body of law that supports such an application of inherent power. The column, “Court Rejects 37(e), Invokes Inherent Authority to Sanction,” explains how the decision may contribute to uncertainty around sanctions that Rule 37(e) was intended to remove and may reopen the circuit court split that the rule was designed to resolve. E-discovery counsel Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article, which appeared in the New York Law Journal on June 5.