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.