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<b><i>Legal Tech</b></i><br>Circumstantial Evidence vs. Speculation: What Warrants e-Discovery Sanctions

By Mike Hamilton

We've all heard, “It's not whether you win or lose, but how you play the game.” But how you play the game is often a big part of ending up on the winning side in e-discovery. In today's political climate, it has almost become “normal” that people frivolously make speculative statements without any proof that the statement is true. While this may be standard practice in the political world, in court this practice will not be convincing to any judge, especially when making an argument for e-discovery sanctions based on new rule FRCP 37(e) — updated spoliation standard for electronically stored information (ESI).

But it seems that a lot of parties accusing their opposition of spoliation didn't get this memo or have been misguided by forces outside the courtroom. Case in point, a rash of recent court rulings denying motions for spoliation sanctions under 37(e).

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