Lost ESI: The New FRCP 37(E) and All Illinois Lawyers

Kane County Illinois Bar Briefs (July 2016)

5 Pages Posted: 21 Aug 2016  

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: August 19, 2016


As of 2006, Federal Civil Procedure Rule (FRCP) 37(e) declared that lost electronically stored information (ESI) could not prompt “sanctions … on a party” absent “exceptional circumstances,” where the loss resulted from “the routine, good-faith operation of an electronic information system.” Before then, sanctions for lost ESI and non-ESI were lumped together. Effective December, 2015, FRCP 37(e) expressly contemplates limited “measures … to cure the prejudice” caused by lost and irreplaceable ESI arising from a pary’s failure “to take reasonable steps to preserve,” where the lost ESI “should have been preserved in the anticipation or conduct of litigation.” The new rule also authorizes sanctions for intentional acts resulting in lost irreplaceable ESI. The rule was amended because the 2006 rule had “not adequately addressed the serious problems resulting from “the continued exponential growth in the volume” of ESI and had prompted in the federal circuits “significantly different standards” for imposing curative measures or sanctions on parties who fail to preserve ESI. Clearly the new ESI rule was both more expansive (i.e., beyond the “operation” of an ESI system) and more limited (i.e., only “irreplaceable ESI”) than the 2006 rule.

This article first reviews the basic features of the new FRCP 37(e) and its counterparts in Illinois. It then considers the significant impact of the new federal rule on all Illinois lawyers, including those practicing only in Illinois state courts. In particular, the article explores issues under the new rule involving choice of law; irreplaceability; culpability; burden of proof; curative measures or sanctions; who is a party; and, the impact on state spoliation torts involving lost ESI.

Keywords: discovery, ESI, eletronically stored information, FRCP 37(e), spoliation, evidence preservation, discovery sanctions, curative measures, Illinois Civil Procedure, Federal Civil Procedure

Suggested Citation

Parness, Jeffrey A., Lost ESI: The New FRCP 37(E) and All Illinois Lawyers (August 19, 2016). Kane County Illinois Bar Briefs (July 2016). Available at SSRN: https://ssrn.com/abstract=2826603

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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