This post continues our discussion of Rebecca Rutherford’s excellent CLE on the amended federal rules, presented on June 2, 2015. Our first post, covering the changes to Rule 26, can be found here. This post addresses the second portion of the CLE, addressing the changes to Rule 37.
Rule 37(e), entitled “Failure to Provide Electronically Stored Information,” has basically been done away with. The new rule is basically split into three parts:
- First, under Rule 37(e), the moving party must show that the ESI (i) that should have been preserved was lost, (ii) the ESI was lost because the party didn’t take reasonable steps to preserve it, and (iii) the ESI cannot be restored or replaced through additional discovery.
- If Rule 37(e) is satisfied, and the moving party can show prejudice, the Court generally may only “order measures no greater than necessary to cure the prejudice,” per Rule 37(e)(1).
- If, however, the non-moving party did not preserve ESI “with the intent to deprive another party of the information’s use in litigation,” the Court may issue much harsher sanctions under Rule 37(e)(2): (i) presume that the lost information was unfavorable to the party, (ii) instruct the jury that it may or must presume the information was unfavorable to the party, or (iii) dismiss the action or enter a default judgment.
Some thoughts from Ms. Rutherford on the rule change:
- Before the amendment from the rule, the circuits were split on the appropriate response to ESI spoliation. The Second Circuit, for example, would impose harsh sanctions for negligent destruction of ESI, while the Fifth Circuit reserved harsh sanctions for intentional destruction of ESI.
- The rule change is intended to displace all other authority to impose sanctions for ESI spoliation, including the Court’s inherent authority and state-law bases. The rule change, however, will not cover spoliation of non-ESI documents or tangible things—those will be covered by common-law spoliation principles.
- Ms. Rutherford discussed some possible remedial measures that a Court could consider under 37(e)(1): (i) forbid a party from presented certain evidence, (ii) tell the jury about the spoliation, (iii) a curative instruction from the court, or (iv) the award of fees. A court may not, however, impose any sanctions listed in Rule 37(e)(2) when determining “necessary” measures under Rule 37(e)(1).