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Sanctions Under FED. R. CIV. P. 37(E)

In December 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of the amended rules, Rule 37(e), was completely rewritten in an attempt to develop a uniform, national standard for the imposition of sanctions involving the loss or spoliation of electronically stored information ("ESI"). This article briefly reviews the district court decisions that have applied Rule 37(e) since it went into effect. One conclusion that can be gleaned from those decisions, even at this early stage of the rule's development, is that the Rule 37(e) is being applied in a way to limit or deny sanctions that in years past would likely have been imposed. To understand why this is the case, we need to first turn to the Rule 37(e) itself, and then highlight several provisions from the rule's 2015 Committee Note. More ›