March 20, 2018 Articles

Amended Rule 37(e): The "Independent" Obligation to Preserve

The ethical duty of physicians to retain patient records may rise to the level of a legal duty to preserve records.

By Thomas Y. Allman

In most cases cognizable in federal courts, the duty to preserve arises (or is “triggered”) because of the pendency of litigation or in anticipation of it, thereby providing notice to the party of the need to act. In fact, an empirical analysis found 106 decisions, as of 2012, where the reasonable anticipation of litigation had triggered a duty to preserve.

Amended Federal Rule of Civil Procedure 37(e) employs the common law duty; “it does not attempt to create a new duty to preserve.” However, according to the committee note to Rule 37(e), a duty to preserve may also arise when an “independent requirement” exists, stemming from “a wide variety of concerns unrelated to the current litigation.” The committee note to Rule 37(e) explains that the requirement can arise from many sources, including “statutes, administrative regulations, an order in another case, or a party’s own information-retention protocols.”

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