Federal Rule of Civil Procedure (FRCP) 37(e), amended on December 1, 2015, permits a court to impose sanctions on a party for failing to preserve electronically stored information (ESI). The amended rule provides a roadmap for litigants and courts to assess whether sanctionable conduct has occurred and, if so, to craft an appropriate remedy. Decisions interpreting the amended rule since it became effective one year ago offer additional guidance on how courts are applying the new framework.

Before the 2015 amendments to the FRCP, federal courts had developed significantly different standards for imposing sanctions under FRCP 37(e). Parties lacked consistent guidance on what a court would consider to be the routine, good faith operation of an electronic management system, which was the operative inquiry under the old rule. Moreover, parties were exposed to a wide range of potential sanctions across different jurisdictions. (See 2015 Advisory Committee Notes to FRCP 37(e).)

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