Editor’s note: This is the first of a two-part series examining new Rule 37(e).
The long-discussed changes to the Federal Rules of Civil Procedure went into effect on Dec. 1. The most-discussed and prominent changes were to Rules 26(b) and 37(e), the latter rule pertaining to spoliation. Under the amended Rule 37(e), if Electronically Stored Information (ESI) “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, the court” may order curative measures, if it finds that another party was prejudiced due to the loss of the ESI, which measures may be “no greater than necessary to cure the prejudice.” If the court finds that the offending party “acted with the intent to deprive another party of the information’s use in the litigation,” it may “presume that the lost information was unfavorable to the party,” “instruct the jury that it may or must presume the information was unfavorable to the party,” or, “dismiss the action or enter a default judgment.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
