In November 2012, the Judicial Conference of the U.S. Advisory Committee on Civil Rules proposed that Rule 37(e) be gutted and replaced with one that allows a court to sanction a producing party for failure to preserve "discoverable information that reasonably should" have been "preserved in the anticipation or conduct of litigation" only when the requesting party can show that the failure was "willful or in bad faith" and caused the requesting party "substantial prejudice," or that such failure "irreparably deprived" the requesting party "of any meaningful opportunity to present a claim or defense."
Revising the Rules Regarding ESI Preservation
The Legal Intelligencer
March 19, 2013
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