REVISED (Post-Public Comment) RECOMMENDATION OF DISCOVERY SUBCOMMITTEE
Rule 37.
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.
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.
