Is a phone ESI or a tangible thing?

The discovery rules for discovery in litigation in the US Federal courts changed recently, drawing a distinction between electronically stored information and everything else.  If it’s ESI, then it is more difficult to get sanctions for destroying evidence.

“FTC Claims VW Mobile Phones Missing,” The Wall Street Journal, December 10, 2016 B3.  Twenty-three mobile phones assigned to people important to the investigation emissions scandal have been lost or wiped.

For those phones that were lost (as opposed to those that were wiped), what rules on sanctions apply?  The ones applicable to ESI, or the ones applicable to tangible things?  Or since it’s obstruction of justice, it just doesn’t matter?  See 18 USC § 1519.

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Filed under Access, Board, Compliance, Compliance, Controls, Corporation, Discovery, Duty, Employees, Governance, Information, Internal controls, Legal, Protect assets, Protect information assets, Value

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