Rethinking Discovery Obligations For Modern Digital Files

Hubbard v. Crow is a recent federal case highlighting complex issues at the intersection of technology and the law, particularly regarding the preservation and production of electronic evidence under Rule 37 of the Federal Rules of Civil Procedure.

The case centered on a dispute over plaintiffs' alleged failure to produce an unedited podcast recording, which existed only as a hyperlink in an email and was later edited at plaintiffs' request. Defendant Crow sought Rule 37(e) sanctions (including an adverse inference instruction), claiming spoliation of electronically stored information (ESI). However, the court denied the request for sanctions because Crow had not shown the missing ESI could not be restored or replaced, such as by obtaining the file from the podcaster or recovering it from a corrupted SD card.