Lost ESI Under the Federal Rules of Civil Procedure
Parness, Jeffrey A.
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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 losses resulting from “the routine, good-faith operation of an electronic information system.” Effective December, 2015, Rule 37(e) now contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI due to a party’s failure “to take reasonable steps to preserve,” as well as sanctions for more culpable conduct. 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), which included comparable guidelines for ESI and non-ESI discovery. This article first reviews 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 litigation. It then comments on the challenges posed under the new federal rule, including issues on choice of law; irreplaceability; culpability; burden of proof; party identification; and, state spoliation torts.