June 18, 2020 Articles

Spoliation Sanctions and How to Avoid Them

Amended Rule 37(e) provides a uniform standard for imposing sanctions when assessing the degree of accountability for nonpreservation.

By Dalila Hoover

Know the amended Rule 37(e)! As more and more clients are embracing advanced technology devices to store an increasing volume of electronically stored information (ESI) in their daily operations, practitioners must know and understand Rule 37(e). The rule was amended in 2015 to bring a uniform standard when assessing the degree of accountability (intentional and negligent) before sanctions may be imposed. See Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment (stating that “[i]t is designed to provide a uniform standard in federal court for use of these serious measures when addressing failure to preserve electronically stored information”). 

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