November 03, 2015 Articles

The 2015 Amendment to Federal Rule of Civil Procedure 37(e)

So, you forgot to preserve all that ESI--now what?

by Neil E. Aresty

After much debate, public commentary, and discussion, proposed new Federal Rule of Civil Procedure 37(e), "Failure to Preserve Electronically Stored Information," is expected to go into effect on December 1, 2015. New Rule 37(e) replaces the entire text of current Rule 37(e). See Report of the Judicial Conference Committee on Rules of Practice and Procedure, app. B-55 to -67 (2014) [hereinafter Judicial Conference Report] . Businesses, especially those that have become overwhelmed by the costs of electronic discovery, just might find comfort in this new rule, which is an attempt to insert reasonableness and proportionality into the duty to preserve electronic evidence. It is also motivated by the desire to see cases decided on their merits and not on which side can afford higher discovery costs.

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