Under common law and as expressly referenced in amended Federal Rule of Civil Procedure (FRCP) 37(e), a party must preserve documents and electronically stored information (ESI) when it reasonably anticipates litigation. Although applying this standard typically is straightforward once litigation has begun, determining when the duty to preserve has been triggered and the scope of that duty often involves a multi-factor analysis that can be difficult for courts and counsel to apply consistently.

Federal common law requires potential litigants to begin preserving relevant documents and other tangible evidence when they reasonably anticipate litigation (Crown Battery Mfg. Co. v. Club Car, Inc., 185 F. Supp.
3d 987, 998 (N.D. Ohio 2016)). This standard also applies to ESI under amended FRCP 37(e), which expressly incorporates reasonable anticipation of litigation as a trigger for a party’s duty to preserve relevant ESI under the rule’s sanctions framework. Although FRCP 37(e) offers little guidance on how to apply the reasonable anticipation of litigation standard, and case law under FRCP 37(e) is still developing, the rule does not
attempt to create a new duty to preserve. Courts and counsel therefore may continue to rely on existing case law interpreting the reasonable anticipation of litigation standard. (See 2015 Advisory Committee’s Note to FRCP 37(e); see also Ala. Aircraft Indus., Inc. v. Boeing Co., 2017 WL 930597, at *8 (N.D. Ala. Mar. 9, 2017); Gonzalez-Bermudez v. Abbott Labs. PR Inc., 2016 WL 5940199, at *23 n.10 (D.P.R. Oct. 9, 2016).)

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