eDiscovery Federal Rule 37: Safe Harbor

Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions

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(f) Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Rule 37 Summary

This rule provides a safe harbor against discovery sanctions for failure to produce electronically stored information (ESI) that was destroyed as part of the good-faith operation of a data management system.

Rule 37 Checklist

 Review your client's document retention and management policies

 Ensure compliance with statutory and regulatory retention requirements - this safe harbor only applies to discovery sanctions.

 Make sure that your client's normal policy is altered to handle any preservation obligations that may arise in the course of litigation.