Failure to Preserve Electronically Stored Information - Electronic Discovery

FRCP Rule 37. Failure to Make Disclosures or Cooperate in Discovery: Sanctions
(e) Failure to Preserve Electronically Stored Information.
(f) Failure to Participate in Framing a Discovery Plan

Essentially, Federal Rule 37(e) governs the requirement for competent preservation of discoverable information and ESI that may be related to the matter. Rule 37(f) addresses the need for both parties to be involved in the creation of a discovery plan. Paired together these are commonly known as eDiscovery’s “Safe Harbor Rule”. The rule as a whole is centered around disclosures, both parties cooperating in discovery, and the sanctions that may be applied if parties don’t adhere.

Rule 37 is in place in a large part to combat parties who are resistant to discovery and less than willing to cooperate. It is created on a scale that gives the court the power to weigh the potentially lost ESI and the ability to execute remedial measures when a party was deprived as a result.

A safe harbor is in short a legal check to aid in situations where legal or regulatory conditions need to be met. In the case of eDiscovery, that condition is the right for competent preservation of electronically stored information. Hence why FRCP Rule 37 is often referred to as the Safe Harbor Rule.


(e) Failure to Preserve Electronically Stored Information. 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


(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.

Legal Information Institute [LII] – Cornell Law

Typical scenarios where discovery sanctions can result from failure to preserve can range from:

  • a party suffers prejudice from the lost information
  • “intent to deprive” was present during the loss of information
  • a party failed to implement a data preservation plan
  • a party negligently preserved ESI through in a non-defensible manner

(1) Law.cornell.edu. 2020. “Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.” [online] LII / Legal Information Institute – Cornell University,<http://www.law.cornell.edu/rules/frcp/rule_37>
[Accessed 4 December 2020]

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