“Oops! I just deleted all the emails.”

November 5, 2015

Delete keyThis is the fifth in a series of articles where the authors of the Federal Civil Rules Handbook – Steve Baicker-McKee and Bill Janssen – discuss some of the more significant amendments to the Federal Rules of Civil Procedure that take effect in less than two months’ time.  The newest edition of the Federal Civil Rules Handbook (available November 2015) offers detailed commentary on each of the coming amendments, and other important recent changes in federal civil practice. 


Today, if parties delete emails or other electronically stored information (ESI) relevant to an action, they might lose their entire case, they might get a mild scolding from the judge, or they might experience anything in between.  That will all change with the December 1, 2015 Amendments to the Federal Rules of Civil Procedure, which add an entirely new sanctions provision.  New Rule 37(e) contains a comprehensive scheme for imposing sanctions for the destruction or failure to preserve (that is, “spoliation”) of ESI.

This amendment represents a dramatic change to the current law, where courts typically impose sanctions based only on their inherent power to control cases on their dockets.  In that unstructured context, each judge has been imposing sanctions as she sees fit, and there is no consistency from courtroom to courtroom.  Some judges impose draconian sanctions for relatively minor transgressions and others are reluctant to impose sanctions for much more egregious conduct.

To cure this problem, the amendment adds a completely new provision implementing structured conditions for different levels of sanctions.  As a starting point, the rule establishes three prerequisites for any sanctions.  The court may not impose any sanctions at all related to spoliation of ESI unless: 1) there was a duty to preserve the evidence (which can arise before litigation is filed so long as it was reasonably anticipated); 2) the party failed to take reasonable steps to preserve the evidence (the comments indicate that perfection is not the expected standard, and that loss through an accident might not be sanctionable); and 3) the information cannot be restored or replaced through additional discovery.

Federal Civil Rules HandbookIf those three prerequisites are satisfied, there are two levels of sanctions available to the court.  If the court finds prejudice to the other party, the court may impose measures no greater than necessary to cure that prejudice.  Such measures might include precluding the guilty party from using certain of its evidence or making certain arguments.  It may also include certain instructions to the jury, but explicitly may not include the vary harsh sanction of an adverse inference instruction to the jury—telling the jury that they may, or must, conclude that the lost evidence would have been harmful to the party failing to preserve it.

The adverse inference instruction sanction is reserved for the most culpable conduct.  If the court finds that the party failed to preserve ESI for the specific purpose of depriving another party of the use of that information in the litigation, then the court may impose an adverse inference instruction or even a dispositive sanction like dismissal or judgment.

Initially, the amendment imposed these same constraints on all spoliation sanctions.  However, based on substantial public comment, the Advisory Committee decided to pull the scope back and restrict it to ESI—spoliation of paper documents is still subject to the discretion of the individual judge.

The Advisory Committee notes suggest that problems with spoliation sanctions are more common with ESI, so the Committee decided to limit the new rule to ESI only. If the goal was to have a uniform rule yielding consistent and predictable results from court to court, you would have thought that goal would encompass both ESI and and non-ESI information—but apparently the Advisory Committee thought this compromise was appropriate.

This amendment is long overdue.  One of the overriding purposes of the Federal Rules of Civil Procedure was to foster uniformity across the federal courts.  Spoliation sanctions have become a hot topic, and the dramatic differences from federal court to federal court are antithetical to the uniformity that should be the guiding principle of the federal court system.  It’s just a shame that the new procedures don’t apply to all discovery as well.