Federal Rule of Civil Procedure 37(e), amended in December 2015, imposes sanctions for a party’s failure to preserve electronic data. Under the amended Rule, a court must balance the severity of sanctions against the intent of the spoliator and any prejudice borne by other parties. Since the implementation of the amended rule, courts have striven to achieve this balance, and their careful consideration of each of the factors of the amended rule has yielded interesting results, with potentially significant implications for litigants across numerous industries and in all kinds of federal court litigation.

What Does the Amended Rule Provide?

The amended rule is a multi-step exercise for determining whether, and to what extent, sanctions should be imposed for a party’s loss of data. Beginning by evaluating whether any duty to preserve the data existed, whether the party took “reasonable steps” to preserve the lost data, and whether the lost data is, in fact, irretrievable and irreplaceable, courts considering a motion for sanctions for spoliated data are required by the rule to resolve these “basics” before proceeding to the questions of intent and sanctions. If a party was under no duty to preserve, or if the data loss occurred despite reasonable efforts, then no sanction is appropriate, as in Richard v. Inland Dredging, No. 6:15-0654, 2016 U.S. Dist. LEXIS 134859, at *9-10 (W.D. La. Sept. 29, 2016). Similarly, if the data can be recovered—for example, from a back-up source or from a third party—then sanctions would not be imposed, as in Security Alarm Finances Enterprises v. Alarm Protection Technology, No. 3:13-cv-00102-SLG, 2016 U.S. Dist. LEXIS 168311, at *11 (D. Alaska Dec. 6).

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