One of the most controversial proposed amendments is the new proposed Rule 37(e). This proposed amendment had a singular goal — that is, “to amend the rule to address the overbroad preservation many litigants and potential litigants felt they had to undertake to ensure they would not later face sanctions.” These sentiments were expressed almost entirely by large institutional organizations, mainly corporate defendants. Amendments addressing this concern were proposed at the Duke Conference, and thereafter a mini-conference convened in September 2011 to evaluate various proposals. Additional refinements were made.

The proposed Rule focuses on sanctions as opposed to behavior required for preservation. It does allow a court to conclude that when a party adopts reasonable preservation procedures, that it should not be subject to discovery sanctions, and thus, whether certain preservation practices are reasonable will surely be considered in the sanction calculus. The thrust of the Rule is that a party may only be sanctioned if it acted willfully or in bad faith; thus, the party may not be sanctioned for negligence unless the preserving party’s actions “irreparably deprived” a receiving party of any meaningful opportunity to present or defend against claims in a case.

It is worthwhile to present the entire text of the new proposed Rule here:


(1) Curative measures; sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may

(A) permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney’s fees, caused by the failure; and

(B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction, but only if the court finds that the party’s actions:

(i) caused substantial prejudice in the litigation and were willful or in bad faith; or

(ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.

(2) Factors to be considered in assessing a party’s conduct. The court should consider all relevant factors in determining whether a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, and whether the failure was willful or in bad faith. The factors include:

(A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) whether the party received a request to preserve information, whether the request was clear and reasonable, and whether the person who made it and the party consulted in good faith about the scope of preservation;

(D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(E) whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.

The proposed Advisory Committee Notes

Of particular importance are the proposed Advisory Committee Notes, which confirm and clarify that:

  • The preservation obligation itself does not arise under Rule 37(e).
  • Sanctions originate with the findings under Rule 37(e), not inherent judicial authority or state law.
  • The use of the word “sanction” does not imply that a lawyer should be disciplined by his or her state bar regulatory authority.
  • By requiring that the loss of information has “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation,” that the deprivation to the receiving party, and, accordingly, the sanction, should not relate to a minor claim or defense.
  • The court should only impose sanctions “in narrowly limited circumstances.”
  • In addition to the prejudice to the receiving party, it must be shown that the producing party failed to preserve discoverable information that it should have preserved.
  • That the starting point for the analysis is the importance of the lost information (including whether it was available from other sources).
  • That although most of the cases relate to electronically stored information, the language of the rule applies to all forms of evidence.
  • That the “safe harbor” provision — that is, Rule 37(e) as it has existed since 2006 — should be eliminated because its protections are retained under the remainder of the rule as amended.
  • The limitation of losses due to “a party’s actions” addresses concerns that litigants might be sanctioned for losses of evidence derived from acts of God, malicious cyber-attacks and the like.

Concerns raised in the comments

Commenters both opposed and favored the proposed new Rule 37(e). A number of commenters expressed the view that ambiguity is introduced into the Rule as proposed, such as that regarding a “party…[that] failed to preserve evidence that should have been preserved in the anticipation or conduct of litigation.” Perhaps out of a concern that it might be creating substantive law by more carefully delineating the requirements of the preservation obligation itself, the Committee introduced ambiguity and therefore confusion into the rule by referring somewhat vaguely to the failure to preserve. Another commenter noted that the “substantial prejudice” language is confusing in that it introduces a heretofore-unused standard, and that it would be better to use terms more grounded in the law such as “gross negligence” and “recklessness.”

A common lament is that individuals, who are often innocent people trying to achieve redress through civil rights and employment claims, have too high a burden to demonstrate that the producing party spoliated evidence. Put another way, the proposed changes seem to incentivize negligence.

Those commenters who supported the Rule tended to represent large corporations. They consistently argued, with persuasive quotes from federal judges, that organizational preservation decisions are driving more by the fear of sanctions than by a concrete assessment of what evidence will truly be required in the case. Statistics were presented of the numbers of terabytes that were preserved as a result of a threatened lawsuit that never materialized, along with the cost of preservation. Yet, the over-preservation as described is so extensive that one is compelled to ask whether any analysis was done of what was truly relevant, or whether alternative steps were considered, such as pre-emptively identifying and collecting relevant evidence. In other words, were the preservation actions themselves “reasonable” from the corporation’s perspective?


In the final installment of this series of articles, we will discuss the effect that the proposed Rules changes may be expected to have on your practice.