Rule 37(f), one of the key changes in the upcoming e-discovery (EDD) amendments to the Federal Rules of Civil Procedure, helps define what steps a party must take to preserve potentially discoverable electronically-stored information (ESI) within an electronic information system.
This is a particularly vexing issue because, as noted in the advisory committee report accompanying the amendment, data preservation in electronic information systems is difficult due to “the routine modification, overwriting, and deletion of information that attends normal use,” such as recycling back-up tapes or purging old data, and because “suspending or interrupting these features” to halt routine data loss “can be prohibitively expensive and burdensome.”
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