E-Discovery Realpolitik

Why Rule 37(e) Must Embrace Sanctions

Federal Rule of Civil Procedure 37(e), detailing the consequences of the loss of electronically stored data to be produced in discovery, offers little guidance as to what constitutes sanctionable activity. This uncertainty directly translates into added costs and burdens in the ediscovery process. In response to these concerns, proposed amendments to Rule 37(e) were drafted in 2013 with the intent of decreasing the costs of discovery, in part by decreasing the prevalence of sanctions. This Note argues that the Proposed Rule 37(e)’s attempt to decrease sanctions will not be effective; furthermore, that such a result is not desirable. Proposed Rule 37(e) offers no improvements upon the current 2006 rule, and an effective Rule 37(e) must use sanctions as a tool to develop a unified culpability requirement and delineate and clarify sanctionable conduct and encourage cooperation in the discovery process. This Note recommends that Rule 37(e) must undergo a paradigm shift: it must embrace sanctions as a tool rather than as a liability. It is only then that the Rule can reduce E-discovery costs.

The full text of this Note is available to download as a PDF.