Nearly four years have transpired since the Civil Rules Advisory Committee enacted changes to Federal Rule of Civil Procedure 37(e) on December 1, 2015. In so doing, the committee had two principal objectives in mind. The first was to provide a uniform national standard regarding the issuance of severe sanctions to address spoliation of electronically stored information (ESI). The second was to implement a clear framework for determining whether sanctions of any nature should be imposed for ESI preservation failures.

Given the passage of time, it is worth analyzing whether the 2015 amendments to FRCP 37(e) have satisfied the committee’s objectives by effectively addressing ESI spoliation questions. Such a step is not extraordinary, particularly considering the committee’s actions relating to the original iteration of FRCP 37(e). Three and one-half years after enacting the prior version of the rule in December 2006, the committee had already convened the “Duke Conference” in May 2010 to evaluate the limitations of the prior rule and begin the process of considering possible alternatives.

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