What does FRCP rule 37(e) mean now?

• Position: E-DISCOVERY - Federal Rules of Civil Procedure

Changes in the U.S. Federal Rules of Civil Procedure (FRCP) went into effect December 1, and many experts predict they will accelerate the pace of litigation and provide cost savings.

In particular, Rule 37(e) addresses spoliation within e-discovery, and the changes were designed to address the disparity among different courts on the effects of failing to preserve, as well as the risks parties face with spoliation sanctions.

"What 37(e) tried to do is develop a uniform standard of imposing sanctions when a party fails to preserve this information," Mark Michels, director at Deloitte, told Legaltech News. "The intent of the rule is that only in the most severe situation, where someone actually acts willfully, should they face more severe sanctions."

Rule 37(e), "Failure to Preserve Electronically Stored Information," states that if data is lost "because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery," the court has two options:

1. Upon finding prejudice to another party from loss of the information, the court may order measures no greater than necessary to cure the prejudice.

2. Only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, the court may:

* Presume that the lost information was unfavorable to the party;

* Instruct the jury that it may or must presume the information was unfavorable to the party; or

* Dismiss the action or enter a default...