+Mary Mack

FRCP 37(e) as Totally Rewritten March 2014 (Proposed)


 Rule 37. 


If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)               presume that the lost information was unfavorable to the party;

(B)               instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)               dismiss the action or enter a default judgment.

[(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A)               the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B)               the reasonableness of the party’s efforts to preserve the information;

(C)               the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D)               whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.]

See Current 37 (e) Failure to Provide Electronically Stored Information below:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

+Mary Mack

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