Rule 37(f) is a new rule added by the amendments to the Federal Rules of Civil Procedure that became effective Dec. 1, 2006. It’s been described by commentators in many different ways, including “safe harbor,” “lighthouse” and “minefield.” One of the judges who sat on the rules committee that proposed Rule 37(f), said that it’s meant to be more like a “bubble bath” than a “safe harbor” — something to make companies feel good about handling electronically stored information in litigation.
The rule is meant to give companies limited protection with respect to that critical time when information relevant to pending or threatened litigation or governmental investigation needs to be preserved. The rule is directed at a distinctive and necessary feature of a computer system — the recycling, overwriting and alteration of ESI (which can happen without human involvement) that’s a part of the normal use of the computer.
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