PROPORTIONALITY, TEXT MESSAGES AND SMARTPHONES ON APPEAL

“Applying the principle of proportionality to preservation of electronically stored information (ESI) is gaining traction, as witnessed by recent court opinions, thought leadership and even proposed amendments to the Federal Rules of Civil Procedure. Sometimes application of this principle results in the denial of spoliation sanctions even where a failure to preserve has been established. However, precedential appellate decisions in e-discovery are still rare. In addition, opinions addressing technologies communications such as texting and hardware such as mobile devices have been addressed by very few cases. The recent appellate opinion in PTSI, Inc. v. Haley et. al. is a rare e-discovery case because it is an appellate decision that involves texting, smartphones and the principle of proportionality as applied to preservation.”

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