A client reasonably anticipates litigation, and in-house counsel issues a litigation hold to ensure that no potentially relevant information is lost or destroyed. However, due to an oversight, some otherwise discoverable emails that are relevant, but not essential to the adversary’s claims or defenses, are lost. Can the client ultimately be sanctioned in the litigation for spoliation? Currently, because of a circuit split, the answer may be different depending on the federal district where the litigation is pending.1 If the litigation is in federal court in New York, the court might order sanctions for negligent failure to preserve.2 If, however, the litigation is in federal court in Virginia, the court may very well not issue sanctions for such negligent conduct.3
To address this issue, the Federal Civil Rules Advisory Committee has been considering changes to the rules, amid widespread concern about the burdens of electronic discovery and sanctions for failure to preserve electronically stored data. The result is proposed Rule 37(e),4 which would replace the current rule that applies only to electronic materials, and create a uniform national standard for imposing sanctions for failure to preserve discoverable information, whether electronically stored or not.
The Proposed Rule
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