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Amendments to the Federal Rules of Practice and Procedure: Civil Rules 2015—Failure to Preserve Electronically Stored Information

Paul W. Grimm
December 1, 2015
Available for Distribution

Amendments to Federal Rule of Civil Procedure 37(e), which became effective on December 1, 2015, specify that sanctions for failure to preserve electronically stored information (ESI) require findings that (1) the ESI should have been preserved in the anticipation of litigation, (2) the party failed to take reasonable steps to preserve it, and (3) it cannot be restored or replaced through additional discovery. The rule does not create a duty to preserve ESI. Instead, it leaves in place the common-law duty.

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