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7
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rior to the 2015 amendment to Federal
Rule of Civil Procedure 37(e), the
rule provided no guidance as to the
level of fault required to warrant the imposition
of sanctions. The courts were split and applied
varying approaches to enforcing sanctions from
gross negligence to mere negligence. This ended
up with many corporations over preserving data
to avoid Zubulake-like sanctions. In 2015 Federal
Rule of Civil Procedure 37(e) was amended to
"provide a uniform standard in federal court for
use of these serious measures when addressing
failure to preserve electronically stored
information"
1
. In essence, rather than impose
case ending sanctions, it was decided that if and
once a finding of prejudice is made, "the court is
authorized to employ measures 'no greater than
necessary to cure the prejudice'".
2
Or in other
words, the courts want to find a way to fix the
issue and carry on rather than decide the merits
of the case on discovery abuses.
The new rule applies a logic-based test
meant to uniformly inform the courts and parties
when and how sanctions may be imposed.
B Y K AT H L E E N E . R AT C L I F F E
Federal Rule of Civil
Procedure 37(e)
Amendment
De-Risking e-Discovery for Corporations
D I S C L A I M E R : T H I S A R T I C L E WA S W R I T T E N
A S A N I LTA M E M B E R , A N D N O T A S A
R E P R E S E N TAT I V E O F T H E O F F I C E O F T H E
O H I O AT T O R N E Y G E N E R A L .
