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Despite changes to the Federal Rules of Civil Procedure’s (FRCP) Rule 37(e) clarifying discovery sanction standards in 2015, many lawyers are still filing discovery sanction motions that have little chance of being granted. While some e-discovery lawyers say the reason behind these motions can be tied to lagging information governance practices, others note that busy dockets are keeping judges from sending a message against ‘Hail Mary’ sanction attempts. 

In 2015, Rule 37(e) was updated with specificity regarding when parties can be penalized for the loss of requested electronically stored information (ESI). Under the new rule, if the court finds prejudice to another party stemming from the loss of information, it “may order measures no greater than necessary to cure the prejudice.” Or if the court finds that the party acted with the “intent to deprive another party of the information’s use in the litigation,” the judge can presume the lost information was unfavorable to the party; instruct the jury that they can presume the information was unfavorable to the party; or dismiss the action or enter a default judgment.

The amendment “absolutely” raised the bar for what parties have to show in order to obtain termination sanctions under Rule 37(e), said eDiscovery Assistant CEO Kelly Twigger, who recently released a report of 2020′s e-discovery case law. Still, while the amendment was useful, she said it also sparked a flurry of unsubstantiated sanction requests.

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Victoria Hudgins

I am a reporter for Legaltech News where I cover national and international cyber regulations and legal tech innovations and developments.

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