Barring an extraordinary act of Congress, on Dec. 1, a set of amendments to the Federal Rules of Civil Procedure will take effect. The amendments are designed to accomplish three goals: (1) clarify the consequences of failing to preserve electronically stored information (ESI); (2) stress the importance of the proportionality principle in resolving discovery disputes; and (3) expedite litigation.
Consequences of Failing to Preserve ESI
The current rules have no standards for imposing sanctions on a litigant who fails to preserve ESI, except for Rule 37(e), which creates a safe harbor for the destruction of ESI by means of a “routine, good-faith operation of an electronic information system.” According to the Committee Note to the new amendments, the absence of standards under the current regime has allowed federal courts to establish “significantly different standards for imposing sanctions or curative measures on parties who fail to preserve [ESI,] caus[ing] litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if the court finds they did not do enough.”
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