Federal E-Discovery

Court Rejects 37(e), Invokes Inherent Authority to Sanction

, New York Law Journal

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In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss 'Hsueh v. N.Y. State Dep't of Fin. Servs.', a decision that adds to a growing body of law supporting an application of a court's inherent power to sanction. In endorsing a circuit-specific test for the applicability of an adverse inference sanction for failure to preserve ESI, 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.

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