Lost ESI Under the Federal Rules of Civil Procedure

Authors

• Jeffrey A. Parness, Northern Illinois University College of LawFollow

Abstract

In 2006, Federal Rule of Civil Procedure (FRCP) 37(e) came into effect, declaring that lost electronically stored information (ESI) could not prompt “sanctions … on a party” absent “exceptional circumstances.” Sanctions were limited to where the loss resulted from “the routine, good-faith operation of an electronic information system.” Effective December 1, 2015, Rule 37(e) now contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI arising from a party’s failure “to take reasonable steps to preserve,” where the lost ESI “should have been preserved in the anticipation or conduct of litigation.” For more culpable conduct, the new rule contemplates possible sanctions. The rule was amended in 2015 because the 2006 norm had “not adequately addressed the serious problems resulting from the continued exponential growth in the volume” of ESI and because it had prompted in the federal circuits “significantly different standards for imposing sanctions or curative measures on parties who fail to preserve” ESI. The 2015 rule incorporated only some of the 2013 recommended amendments to FRCP 37(e). This article will first review the basic features of the old and new FRCP 37(e), as well as their place amongst other FRCP and judicial precedents on information preservation in anticipation of and during federal civil litigation. It will then comment on some likely challenges posed to those utilizing or affected by the new federal rule on lost ESI.

Recommended Citation

Jeffrey A. Parness, Lost ESI Under the Federal Rules of Civil Procedure, 20 SMU Sci. & Tech. L. Rev. 25 (2017)