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Advisory Committee Revises, Simplifies FRCP 37(e) Regarding Preservation of ESI

By Matthew E. Lee | 

The Advisory Committee on Civil Rules met recently in Oregon to discuss proposed rule amendments. The rules regarding ESI (Electronically Stored Information) were at the forefront. What came out after public comment was the third revised version of proposed FRCP 37(e) and revisions to FRCP 26(b)(1). If adopted, committee members believe it will simplify the rule and resolve a split among the circuits in the standards applied to preservation of ESI. Bloomberg BNA reports:

“The question was presented that there was a significant volume of ESI that was building up because large organizations were trying to come up with a preservation regime that would apply to them and comply with the case law,” Judge Grimm said.

Judge Grimm explained that a circuit split began to develop, where the level of culpability required to issue sanctions when ESI was not preserved ran the gamut from negligence to recklessness to outright wilfulness. Up against the issue of when the duty to preserve attached was the fact that overpreservation was becoming a huge concern.

According to Bloomberg, the new proposed rule omits factors and states simply: "Courts cannot issue an adverse inference instruction or enter a default judgment where intentional destruction has not been found."

Committee member, Judge Campbell said “[w]e have moved toward a more simple and modest rule, in part because we have found that when you try to write a rule in this area of the law, you encounter many, many problems. ... Of all the Rules I've been involved in in the last eight years, nothing has come close to the challenge of drafting this Rule.”

The full Bloomberg article is here and you can find the full text of the revised proposed amendments to the FRCP here.