Dealing with Prejudice: How Amended Rule 37(e) Has Refocused ESI Spoliation Measures

Since December 1, 2015, Federal Rule of Civil Procedure Rule 37(e) (“Amended Rule 37(e)” or the “Rule”) has provided a uniform approach to addressing spoliation of electronically stored information (“ESI”) which should have been preserved. Only upon a showing of an “intent to deprive” another party of the use of ESI in the litigation are harsh measures available, but if prejudice exists, a broad range of proportional curative measures are available at the discretion of the court.