Summary
Enormous volumes and diverse types of ESI may be relevant to a case, and this can make identification and preservation challenging. It is almost inevitable that some ESI will slip through the cracks. When that happens, FRCP 37(e) provides the framework for assessing the loss and its consequences. This provision was added as part of the 2015 amendments, after a “strikingly, perhaps uniquely, comprehensive and vigorous” public comment period. It sought to bring predictability and consistency to a topic that had been plagued by unpredictability and inconsistent standards across jurisdictions.
In this Whitepaper
- The analysis established by FRCP 37(e)
- Assorted cases interpreting and applying the rule
- Key factors for practitioners to remember
Key Insights
- Best practices considered reasonable steps to preserve
- Kinds of conduct that have led to findings of intent to deprive
- Courts’ inherent authority to sanction beyond the rule
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About the Author
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