eDiscovery Federal Rule 37: Failure to Preserve Electronically Stored Information

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

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(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Sources: April 29, 2015 Supreme Court Order re FRCP Amendment effective December 1, 2015; United States Courts: Current Rules of Practice and Procedure

Rule 37 Summary

This rule sets forth the circumstances under which discovery sanctions for failure to produce electronically stored information (ESI) may be imposed.

Rule 37 Checklist

 Review your client's document retention and management policies.

 Ensure compliance with statutory and regulatory retention requirements - this rule 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.