The Importance of Reasonable Steps in the Preservation of ESI

At the beginning of this month, the long awaited amendments to the Federal Rules of Civil Procedure went into effect. Of the amendments, the one that changed the most following the public comment period was Rule 37(e), which was substantially revised at the April 2014 meeting of the Civil Rules Advisory Committee. The now-implemented Rule 37(e) addresses the failure to preserve electronically stored information (ESI), outlining actions to be taken by the court if “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.”

In an article published in Bloomberg BNA in November, titled A Second Look at “Reasonable Steps”: A New Role for a Familiar Concept, Tom Allman provides background and a useful examination of the rule, including specific examples. Allman notes that “imperfection is not decisive”:

“It is unreasonable to expect a party to take every conceivable step to preserve all potentially relevant ESI—and parties are best situated to evaluate the procedures, methodologies and technologies appropriate to preserve their information.”

The goal of the new rule is to combat the excessive effort and money that litigants have spent on preservation as a result of the significantly different standards for imposing sanctions that have developed across the federal circuits. New Rule 37(e) provides a consistent standard. The Committee Note emphasizes that proportionality is an important factor in evaluating the reasonableness of preservation efforts and that courts should be sensitive to party resources, as “aggressive preservation efforts can be extremely costly.”

This blog is the last in a series this month on the amendments to the Federal Rules of Civil Procedure that went into effect on December 1.