Five years ago FRCP 37(e) was revised and eliminated spoliation remedies based upon negligence in retaining electronically stored information. It seems too few have heeded that change, at least in my practice. As almost everything is now electronically stored information, this is a rule that deserves your attention.
Rule 37(e) addresses a party’s failure to preserve electronically stored information. This can include emails, documents, pictures, video, and anything else you can electronically store. It authorizes certain actions if 1) ESI “that should have been preserved in the anticipation or conduct of litigation is lost; 2) because a party failed to take reasonable steps to preserve it, and 3) it cannot be restored or replaced through additional discovery….”
If all three factors are met, then Rules 37(e)(1) and (2) provide the potential remedies. The 2015 Advisory Committee Notes for the revised Rule 37(e)(2) specifically rejected prior case law “that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.”
Adverse-inference instructions were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.
The Advisory Committee notes expressly stated that (e)(1) remedies are distinct from (e)(2) remedies. “Care must be taken, however, to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information’s use in the litigation.” A Rule 37(e)(2) remedy available only where the facts indicate “the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation.”
 2015 Advisory Committee notes.