Righting the Ship: What Courts are Still Getting Wrong About Electronic Discovery

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether.

This article examines those trends and recommends ways in which to avoid relegating the amended rule to the same fate as its failed predecessor. Not long after its passage in 2006, experts, courts, and litigants concluded original Rule 37(e) did not work. The rule’s language was too vague, and its application was too narrow. Courts and litigants, therefore, routinely ignored the rule, instead relying on courts’ inherent authority to order sanctions.

Consequently, inconsistent and unpredictable law developed, which caused potential litigants to excessively spend on over-preserving ESI. In 2010, the Civil Rules Advisory Committee (the Committee) unanimously agreed to overhaul original Rule 37(e). After years of study—which included holding numerous hearings and receiving comments from over 2,000 interested parties—the Committee completely replaced the original rule with amended Rule 37(e), a clearer and more broadly applicable rule. One of the amended rule’s primary purposes is to promote the development of uniform standards to replace the uncertainty created by the flaws in the original rule.

If courts continue to misinterpret or ignore the amended rule, however, this purpose will be undermined, wasting the significant efforts that went into changing the rule.