Significant amendments to the Federal Rules of Civil Procedure went into effect on Dec. 1, 2015. Among them is an expanded Rule 37(e), which instructs on remedies and sanctions available for spoliation of electronically stored information (ESI).1 Previously, Rule 37(e) barred federal courts from imposing sanctions for a party’s failure to provide ESI “lost as a result of the routine, good faith operation of an electronic information system.”2 But, it provided no further guidance for ESI spoliation in other contexts. As a result, sanctions for ESI spoliation—negligent or intentional—differed widely across jurisdictions.3 With the December amendments to Rule 37(e), the remedies and sanctions potentially available for negligent and intentional spoliation are clearer, and intended to result in more uniform application. And, as with any rule change, judicial application was eagerly anticipated and not long in the waiting. On Jan. 12, 2016, Southern District of New York Magistrate Judge James C. Francis issued a decision in CAT3 v. Black Lineage, analyzing the appropriate remedies available under revised Rule 37(e) for the intentional spoliation of email content, and awarded sanctions.4
Rule 37(e) Provides Different Remedies for Negligent and Intentional Spoliation.
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