In this space nine years ago, nearly to the day, we analyzed the newly-enacted amendments to the Federal Rules of Civil Procedure relating to e-discovery. These amendments included a new Rule 37(e), designed to govern the imposition of sanctions by a court when a party has failed to preserve electronically stored information (“ESI”), thus resolving a circuit split on the degree of culpability required for certain sanctions.

Even after a herculean effort by the rules committee over many years in what was often a complex and challenging drafting process, we still wondered “Will new Rule 37(e) actually result in uniformity across the circuits or open the door for new judicial divergence?” One key issue was the notion, as documented in the corresponding advisory committee note, that Rule 37(e) foreclosed a court’s ability to rely on its inherent authority for imposing such sanctions.