Proposed amendment to F.R.Civ.P. 37(e)

On September 18, 2014, the Judicial Conference Committee on Rules of Practice and Procedure proposed a completely rewritten Rule 37(e)

Rule 37(e). Preservation of ESI is a major issue confronting parties and courts, and loss of ESI has produced a significant split in the circuits. Some circuits hold that adverse inference jury instructions (viewed by most as a serious sanction) can be imposed for the negligent loss of ESI. Others require a showing of bad faith.

The advisory committee’s discovery subcommittee opined that loss of ESI requires a more detailed response to establish a greater uniformity in federal courts’s response to the loss of ESI.

A duty to preserve evidence arises when litigation is reasonably anticipated. Courts may take action when ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.”

Proposed Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.”

Proposed Rule 37(e)(2) provides that “[o]nly upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may:(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”.

According to the report “This proposal preserves broad trial court discretion to cure prejudice caused by the loss of ESI that cannot be remedied by restoration or replacement of the lost information. It further provides that the measures be no greater than necessary to cure the prejudice”.

The Committee concluded that the circuit split should be resolved in favor of the traditional reasons for an adverse inference. “ESI-related adverse inferences drawn by courts when ruling on pretrial motions or ruling in bench trials, and adverse inference jury instructions, should be limited to cases where the party who lost the ESI did so with an intent to deprive the opposing party of its use in the litigation”.

This proposal – together with all the other proposed amendments (see our article) – will now go before the United States Supreme Court for review and, if approved, will take effect on December 1, 2015, absent any action by Congress to revise or reject the amendments.

More information on pending amendments are available at http://www.uscourts…



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