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| 1 minute read

Rule 37(e) in Action: Reducing Sanctions Risks for Unintentional Loss of ESI

Prior to the 2015 amendment to the Federal Rules of Civil Procedure, parties in litigation sometimes faced exposure to sanctions for loss of electronically stored information (ESI), even if there was no intent to deprive requesting parties of information, and even if those parties were not prejudiced. The amended rule sets out stricter standards for spoliation sanctions. For example, in Hamilton v. Oswego Community Unit School District 308 (N.D. III. Feb. 25, 2022), the court found that spoliation sanctions were not appropriate under amended rule 37(e), because there was no prejudice against the plaintiff, nor did the defendant demonstrate intent to deprive. The Exterro case law alert has more details, and features my brief “expert commentary.”

This is not a time, however, to ease up on legal holds or preservation efforts — preservation has become even more challenging as we have seen increased use of more modes of electronic communication — from text messages, to Teams, Slack, social media posts, and videoconferences which are increasingly recorded. Even unintentional loss of ESI can result in costly remedies, and sanctions motions are not going away. My colleague Mike Fox and I recently co-authored "Lessons On Avoiding E-Discovery Violations And Sanctions,” published April 27, 2022 by Law360, which discusses the Hamilton case and 4 other sanctions motion opinions already issued in 2022.


esi, 37e, spoliation, sanctions, ediscovery, e-discovery, preservation, frcp