Courts Are Closely Following Amended Rule 37(e)'s Limits On Sanctions For Lost ESI

Within two years of its implementation, several cases show that amended Rule 37(e) is having its intended impact, as judges are carefully applying the criteria articulated in the Rule prior to ordering curative measures or imposing sanctions. This Jones Day White Paper examines Rule 37(e) cases decided over the past year and explains why proper litigation holds are the first step for minimizing the risk of sanctions.

Our September 2015 White Paper, " Significant Changes to the Federal Rules of Civil Procedure Expected to Take Effect December 1, 2015: Practical Implications and What Litigators Need to Know," examined how the amended rules were designed to focus courts and litigants on substantive issues and on reducing motion practice, especially motions for sanctions for failure to preserve Electronically Stored Information ("ESI"). We discussed the actual impact of the amendments in our September 2016 Commentary, " Noteworthy Trends from Cases Decided Under the