Article: July 2017: A Practical Guide to Spoliation Sanctions Under Amended Rule 37(e) -
Federal Rule of Civil Procedure 37(e), addressing the availability of sanctions for failure to preserve electronically stored information (ESI), was amended effective December 1, 2015. One purpose of the amendments, as the advisory committee explained upon the new rule’s promulgation, is to resolve disagreement among the federal courts of appeals regarding the circumstances under which sanctions are available. See Fed. R. Civ. P. 37(e) advisory committee note (2015). Noting that under the prior version of the rule (which had been adopted in 2006) litigants often felt compelled to undertake excessive preservation measures in order to avoid the possibility of losing a case because of an inadvertent preservation error, the committee sought a compromise under which the district courts would retain authority to punish extreme violations of discovery obligations without creating a mandate that would lead to excessive or disproportionate penalties. The amended rule aims to achieve this goal in part by specifying a detailed sequence of conditions to the imposition of sanctions.
..First, the preamble of the rule makes clear that it applies only if (i) relevant ESI “should have been preserved in the anticipation or conduct of litigation”; (ii) that ESI “is lost because a partyfailed to take reasonable steps to preserve it”; and (iii) the lost information “cannot be restored or replaced through additional discovery.”...
Please see full publication below for more information.
