July 02, 2014 Articles

Rule 37(e) and the Failure to Preserve Sanctions in E-Discovery

This Federal Rule of Civil Procedure undergoes possible revisions.

By Camisha L. Simmons

E-discovery is a critical component of the contemporary litigation process. One issue that arises in e-discovery is the extent of a party’s obligation to preserve relevant electronically stored information (ESI) in anticipation of foreseeable litigation. A party’s failure to properly preserve relevant ESI may result in sanctions being levied on the party, including a court’s instruction to a jury that the jury should assume that the “lost” ESI was adverse to the party’s litigation position.

Rule 37(e) of the Federal Rules of Civil Procedure (FRCP) is the applicable federal rule governing the standard by which a party’s failure to preserve ESI is judged and sanctions imposed accordingly. This rule is made applicable to adversary and contested matters in bankruptcy by Rules 7037 and 9014 of the Federal Rules of Bankruptcy Procedure, respectively. Rule 37(e) is now in the process of being revised to clarify the standard for preservation of ESI. 

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