February 23, 2016 Articles

Keeping Things in Proportion: Preservation of ESI under Amended Rule 37(e)

By Karen Henry

The concept of “proportionality” is widely recognized as one of the key themes in the 2015 amendments to the Federal Rules of Civil Procedure. Interestingly, while the concept of proportionality permeates the 2015 amendments, most of the scholarship on the subject analyzes proportionality only in relation to Rule 26. But the Civil Rules Advisory Committee did not use the concept of proportionality exclusively to reframe the scope of discovery in Rule 26; it also infused that concept into its amendment of Rule 37(e) in an effort to alleviate some of the burdens associated with litigants’ obligations to preserve electronically stored information (ESI) and to ease the harsh penalties some courts had been imposing for failing to meet those obligations.

More specifically, in its notes discussing the 2015 amendments to Rule 37(e), the advisory committee acknowledged that, because federal circuits had adopted significantly different standards regarding the imposition of sanctions for failure to preserve ESI, litigants were expending “excessive effort and money” on preservation to minimize their exposure to severe sanctions in the event a court found their preservation efforts lacking. The amendments to Rule 37(e) offer courts a standardized analytical framework to employ when evaluating the potential spoliation of ESI. Of particular relevance here, the concept of proportionality plays a primary role in that analysis.

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