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FRCP E-Discovery Amendments Expected To Go Into Effect 12/1/2015

Kroll Ontrack’s E-Discovery blog rounds up some of the Federal Rules of Civil Procedure changes related to e-discovery. While the rules package contains several important amendments, the most controversial proposal relates to the “failure to preserve” section in Rule 37(e). This language was the most hotly contested area throughout the public comment period.

The revised rule is designed to ensure a more uniform response from Federal Courts regarding the loss of Electronically Stored Information (ESI). The rule, broken into two sections, gives courts power to undertake “measures” – AKA sanctions and other similar procedures – when a party loses ESI because they failed to take “reasonable steps” to preserve it during the anticipation of impending litigation.

The first section, Section 37(e)(1), allows a court to take measures when a party is prejudiced by the opposing party’s loss of ESI. The court is permitted to take reasonable action that sufficiently cures the party’s prejudice even though the loss of the ESI may not have been the opposing party’s fault.

Similarly, the second section, Section 37(e)(2), authorizes a court to take measures when a party intentionally loses ESI.  However, it does not require a showing of prejudice to the adverse party. The court can assume that the ESI was unfavorable, instruct the jury that the ESI was unfavorable, or grant default judgment or dismiss the case.




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