E-Discovery and Litigation Data
Preservation
Rule 37(e), amended in 2015, provides the exclusive framework for addressing ESI lost because a party failed to take reasonable preservation steps. It applies only where the information cannot be restored or replaced through additional discovery.
If loss causes prejudice, the court may order measures no greater than necessary to cure it. Only on a finding that the party acted with intent to deprive another of the information may the court presume the information was unfavorable, instruct the jury to so presume, or dismiss or enter default judgment.
Alternative Names:
Federal Rule 37(e), ESI Sanctions Rule
Why it Matters?
The 2015 amendment deliberately raised the bar and displaced the inconsistent circuit standards that preceded it, which makes the intent finding the whole battleground in federal preservation disputes. Defense counsel litigate to keep the analysis in the curative-measures tier, while plaintiffs build a record of ignored notices and suspicious timing to reach the intent finding.
Frequently Confused with
Related terms
Frequently asked questions
What must be shown to obtain an adverse inference under Rule 37(e)?
Does Rule 37(e) apply to paper documents?
