TL;DR
Organizations avoid FRCP 37(e) sanctions by taking reasonable steps to preserve electronically stored information as soon as litigation is reasonably anticipated. Metadata loss, improper data collection, and weak preservation practices often trigger costly discovery disputes. The case of Leidig et al v. Buzzfeed, Inc., No. 1:2016cv00542 – Document 75 (S.D.N.Y. 2017) shows how negligent ESI preservation can still damage a case even when courts find no intent to destroy evidence.
Modern litigation runs on digital evidence. Emails, shared documents, messaging platforms, and databases all generate electronically stored information that may become critical during discovery. When that information is lost or altered, courts can impose sanctions under the Federal Rules of Civil Procedure.
The consequences can be severe.
Discovery disputes involving metadata spoliation frequently lead to sanctions motions, credibility challenges, and delays that increase litigation costs for everyone involved. Legal teams must understand how preservation failures occur and why courts scrutinize them so closely.
Under the Federal Rules of Civil Procedure, parties have a duty to preserve relevant data when litigation becomes reasonably foreseeable. When organizations rely on manual data handling, informal preservation practices, or poorly coordinated workflows, they create significant risk that electronic evidence will be altered or lost.
Understanding how courts analyze ESI preservation failures helps legal teams protect both their evidence and their litigation strategy.
ESI Preservation and Metadata Duty
Electronically stored information includes both the visible content of a file and the metadata attached to it. Metadata may reveal when a document was created, when it was edited, who accessed it, and how it moved between systems. Courts often rely on this information to evaluate authenticity and reconstruct timelines during litigation.
Because of this, metadata preservation is closely tied to the broader duty to preserve evidence. That duty begins when litigation is reasonably anticipated. At that point, organizations are expected to take reasonable steps to prevent relevant data from being deleted, overwritten, or altered.
Mostpreservation failures occur long before discovery begins. Routine data management practices, automated deletion policies, and informal document handling can unintentionally remove important data and metadata fields. Once that information is lost, it may be impossible to recreate the original record of how a document evolved over time.
Courts evaluating preservation failures under FRCP 37(e) focus on whether a party acted reasonably once the duty to preserve attached. If relevant information disappears and cannot be restored or replaced through additional discovery, the court may consider sanctions or other remedial actions.
This is why preservation planning requires coordination between legal teams, IT professionals, and litigation support specialists. When that coordination breaks down, disputes about missing or altered metadata can quickly escalate into costly discovery conflicts.
Case Study Metadata Spoliation in Leidig v. BuzzFeed
The case of Leidig v. BuzzFeed illustrates how preservation mistakes can reshape litigation. The dispute involved an eleven million dollar defamation lawsuit brought by journalist Michael Leidig and his news agency, Central European News.
BuzzFeed had published an article suggesting that the organization produced fabricated stories. In response, the plaintiffs argued that their reporting practices were legitimate and supported by original documentation.
During discovery, the defense raised concerns about the integrity of the plaintiffs’ document production. The files produced by Central European News contained almost no system metadata. Many records appeared as PDFs or narrative summaries rather than native files.
Further investigation revealed that documents had been manually moved into a production repository before they were produced. That process altered the original metadata associated with the files, including timestamps that could have helped verify when certain stories were created.
The court also examined whether the plaintiffs had taken meaningful steps to preserve their data before the lawsuit was filed. Evidence suggested that no formal legal hold had been implemented even though the dispute had already escalated into a foreseeable legal conflict.
These failures prompted BuzzFeed to file a sanctions motion under FRCP 37(e). The defense argued that the loss of metadata prevented them from verifying key aspects of the plaintiffs’ claims.
While the court concluded that the conduct was certainly negligent, it ultimately ruled that there was not enough evidence to show a deliberate intent to deprive the opposing party of information.
Even so, the preservation failures had lasting consequences for the plaintiffs’ case.
Proving Intent to Deprive Under Rule 37(e)
Federal Rule of Civil Procedure 37(e) establishes a structured framework for addressing the loss of electronically stored information. Courts apply a step by step analysis when deciding whether sanctions are appropriate.
First, the court determines whether the missing information should have been preserved once litigation was reasonably anticipated. If the answer is yes, the court then considers whether the party failed to take reasonable steps to preserve that information.
If relevant data has been lost and cannot be restored or replaced through additional discovery, the court moves to the next stage of analysis. At this point, the focus shifts to the impact of the lost information on the litigation.
Rule 37(e) distinguishes between two levels of judicial response. Courts may impose curative measures to address prejudice caused by missing evidence even when the loss resulted from negligence. These measures are intended to restore fairness between the parties rather than punish misconduct.
More severe penalties require a different finding. Sanctions such as a presumption that the lost information was unfavorable to the party, adverse inference jury instructions, case dismissal, or default judgment generally require proof that the party acted with intent to deprive the opposing side of evidence.
This requirement reflects a key policy goal behind the rule. The modern discovery environment involves enormous volumes of digital information, and perfect preservation is rarely possible. The rule therefore focuses on whether a party acted reasonably and whether the loss of evidence resulted from deliberate misconduct.
Sanctions vs Preclusion: Understanding the Penalties
Many litigants assume that avoiding the harshest sanctions means a discovery dispute has little impact on the case. In reality, courts often impose remedies that significantly limit how evidence can be used at trial.
Under Rule 37(e)(1), judges may order curative measures when the loss of electronically stored information causes prejudice to another party. These remedies are designed to level the playing field rather than punish the offending party.
In Leidig v. BuzzFeed, the court concluded that the plaintiffs’ preservation failures had undermined the reliability of key metadata. As a result, the court barred Central European News from using certain creation date metadata to prove when stories were written.
This type of evidentiary preclusion can be extremely damaging. When a party cannot rely on important metadata fields, it may lose the ability to establish timelines or authenticate documents effectively.
The court also allowed BuzzFeed to present evidence about the preservation failures to the jury. This meant the jury could hear about the missing metadata and consider what that absence might imply about the credibility of the plaintiffs’ evidence.
These outcomes highlight the friction tax associated with discovery disputes. Even when courts decline to impose case ending sanctions, preservation failures can still weaken a party’s ability to present its claims convincingly.
30(b)(6) Risks: Why Witness Preparation Matters
Discovery disputes do not end with document production. Depositions often reveal additional information about how electronic evidence was preserved and collected.
In the BuzzFeed litigation, the court ordered a deposition under Rule 30(b)(6) to examine the plaintiffs’ efforts to collect documents and preserve metadata. A corporate representative was required to testify about the organization’s data preservation practices.
The plaintiffs designated Michael Leidig himself as the corporate witness. During the deposition, however, it became clear that he did not have the technical knowledge needed to explain how the organization handled electronically stored information.
Opposing counsel used this testimony to highlight gaps in the preservation process. Questions about document collection, metadata handling, and storage practices produced uncertain or incomplete answers.
When a designated corporate representative cannot explain how electronic evidence was preserved, courts may view the organization’s discovery practices with skepticism. This can lead to additional discovery disputes and what many litigators call discovery-about-discovery.
Depositions focused on ESI preservation often expand the scope of litigation and increase costs for both parties. They can also reinforce arguments raised in sanctions motions by demonstrating that preservation decisions were poorly understood or inconsistently applied within the organization.
These credibility issues frequently become just as significant as the underlying technical problems with the evidence itself.
Best Practices for Defensible ESI Collection
Digital evidence is fragile. Routine data handling, system migrations, and informal document management practices can alter metadata or break the chain of custody without anyone realizing it.
These risks are particularly significant when organizations rely on manual processes or allow employees to gather potentially relevant documents themselves. Self collection often changes timestamps or strips system metadata, creating uncertainty about when files were created or modified.
Courts regularly examine these issues when evaluating sanctions motions. If electronic evidence appears altered or incomplete, opposing parties may challenge its reliability and demand additional discovery into how the information was collected.
Defensible ESI collection practices are designed to reduce these risks by maintaining native file integrity and preserving the original structure of digital evidence. When preservation decisions are documented and handled through coordinated workflows, organizations are far better positioned to defend their discovery conduct.
Guidance used by litigation support teams frequently reflects structured governance frameworks developed across the legal technology industry.
When organizations treat data preservation as a strategic litigation issue rather than a technical afterthought, they significantly reduce the likelihood of costly sanctions disputes.
Ready for Defensible eDiscovery Support
Metadata preservation failures can undermine even strong legal claims. Lost system metadata, improper document handling, and poorly prepared witnesses often lead to sanctions motions that distract from the core issues in a case.
Complete Legal works alongside law firms and corporate legal teams as an extension of their litigation support infrastructure. Our professionals help manage complex discovery obligations while protecting the integrity of critical digital evidence.
Through defensible data collection, secure hosting, and advanced review workflows powered by Relativity, Complete Legal supports legal teams facing the growing challenges of modern electronic discovery.
For expert-level insight and personalized solutions, reach out to the Complete Legal team today.
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Key Takeaways
- FRCP 37(e) governs how courts respond when electronically stored information is lost during or before litigation
- The duty to preserve digital evidence begins when litigation becomes reasonably foreseeable
- Metadata spoliation often results from manual file handling, self collection, or weak preservation practices
- Courts require proof of intent to deprive before imposing the most severe sanctions such as adverse inference instructions
- Even negligent preservation failures can lead to evidentiary preclusion and credibility challenges at trial
- Strong preservation governance significantly reduces the risk of discovery disputes and sanctions motions
