Federal Rule of Civil Procedure 37(e): failure to preserve electronically stored information
United States Courts · Replaced in full by the amendment effective December 1, 2015 · 2015
Access and status
Cost
Free
Free to read or download at source. No account, no purchase.
Status
Current
Current as at the verification date below. Standards and tools both move — confirm at source before you rely on it.
What it is
The federal sanctions rule for lost ESI. It applies only where information 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, and it reserves the severe measures — adverse inference, dismissal, default — for a finding that the party acted with intent to deprive another party of the information's use.
Who it is for, and when
Read it before writing a preservation plan, and read it again before moving for spoliation sanctions, because the 2015 rule displaced the circuit-by-circuit negligence standards that preceded it. Examiners are usually the people who establish what was lost, whether it can be restored or replaced, and whether deletion patterns support intent, so the rule tells them what facts the motion will turn on.
What it does not cover
It governs civil cases in federal court only, says nothing about criminal matters or state-court practice, and does not define what "reasonable steps" are in any concrete system. Nothing in it addresses the duty to preserve itself, which comes from case law.
Go to the source
Open at law.cornell.edu (opens in a new tab)https://www.law.cornell.edu/rules/frcp/rule_37
Details
- Type
- Standard or guidance
- Written for
- Lawyers and courtsWorking examinerLawyers and courts, Working examiner
- Publisher
- United States Courts
- Version verified
- Replaced in full by the amendment effective December 1, 2015
- Year
- 2015
- Topics
- spoliation, preservation, ediscovery, evidence-handling, us-federal
- Checked at source
- Standards are revised. Confirm the current revision with the publisher before citing this.
Related entries
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A consensus commentary on when mobile device data is within the scope of civil discovery and how to collect and produce it proportionately, covering possession, custody or control over personal devices, targeted versus full extraction, and the form of production for message threads.
A consensus commentary on getting electronically stored information into evidence — authentication, hearsay, best evidence, and the certification routes — rewritten for the second edition to take account of Rules 902(13) and 902(14).
Fourteen consensus principles on producing electronically stored information in civil litigation, with commentary, revised to reflect the 2015 amendments to the Federal Rules of Civil Procedure. Courts cite it more often than any other non-binding ediscovery text.