Curative Measures

Curative Measures

Curative Measures

Rule 37(e)(1) permits measures no greater than necessary to cure prejudice from lost ESI, including allowing evidence and argument about the loss, precluding certain evidence, or shifting costs.

They are available without any finding of intent.

Alternative Names:

Rule 37(e)(1) Measures, Remedial Measures

Why it Matters?

Curative measures are the realistic exposure in most spoliation disputes, since intent findings are uncommon. The practical effect can still be significant, because permitting the jury to hear evidence and argument about the loss lets a plaintiff suggest what the missing material would have shown without the court making that finding. Cost shifting for additional discovery to reconstruct lost information is another frequent remedy.

Frequently asked questions

What measures are available without intent?

What measures are available without intent?

Measures no greater than necessary to cure prejudice, including permitting evidence and argument about the loss, excluding evidence, and shifting costs.

Are curative measures significant?

Are curative measures significant?

Yes. Allowing argument about the loss lets a jury draw its own conclusions about the missing material without the court finding intent.