Sanctions for Loss of ESI: Rule 37(e) and Other Sources of Authority

“Loss” of electronically stored information (“ESI”) is governed explicitly by Rule 37(e) of the Federal Rules of Civil Procedure. However, since its adoption in 2015, federal judges have “enforced” the rule and imposed sanctions in varying ways, some of which implicate the proper roles of judge and jury, and have also relied on other sources of authority to impose sanctions. This Briefing will consider those varying approaches under Rule 37(e) and those other sources of authority, including inherent power, and will also offer strategies to seek and to avoid or minimize sanctions.

Topics to be addressed include:

• History and structure of Rule 37(e) (10 minutes)
• Other sources of authority to impose sanctions (10 minutes)
• Approaches to the roles of judge and jury in awarding sanctions (20 minutes)
• Alternate forms of jury instructions (10 minutes)
• Different approaches by state courts (10 minutes)

Program Level:  Overview

Prerequisites: None

Advanced Preparation: None

Faculty:

Thomas Y. Allman

University of Cincinnati College of Law (Ret.)

Hon. James C. Francis IV

USMJ (Ret.)

JAMS

Ronald J. Hedges

USMJ (Ret.)

Dentons