Rule 37(e): what happens when electronically stored information is lost

Rule 37(e) was rewritten in 2015 to end a split among the circuits over when a court could give an adverse-inference instruction for lost electronic evidence. The answer it gives is narrow and specific: only on a finding that the party acted with the intent to deprive. Negligence, even gross negligence, does not get there.

Everything else — the curative measures — requires a finding of prejudice, and only measures "no greater than necessary" to cure it.

Four conditions before anything happens

The opening words of Rule 37(e) do most of the work. The rule applies only 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…

Four gates, and failing any one of them ends the analysis.

It must be ESI. Rule 37(e) governs electronically stored information only. Loss of paper documents or physical evidence is dealt with under the court's inherent authority and other parts of Rule 37, not here.

A duty to preserve must have attached — "in the anticipation or conduct of litigation." The rule does not define when anticipation begins; that comes from case law.

Reasonable steps, not perfection. The question is whether the party "failed to take reasonable steps," which builds proportionality into the threshold. A routine retention policy applied in good faith is a different thing from a failure to issue a hold.

And the information must be genuinely gone. If it "can be restored or replaced through additional discovery" — from a backup, another custodian, or the other side of the correspondence — Rule 37(e) does not apply at all. This is the gate that disposes of most spoliation motions, and it is the first thing to test.

Two tiers of consequence

Once all four conditions are met, the rule splits sharply.

Rule 37(e)(1) — prejudice:

upon finding prejudice to another party from loss of the information, [the court] may order measures no greater than necessary to cure the prejudice.

No finding about the party's state of mind is required. But the remedy is capped by its purpose: cure the prejudice, nothing more. That is a proportionality limit written into the sanction itself.

Measures under this tier are the modest ones — allowing additional discovery, permitting evidence and argument about the loss, cost-shifting, or excluding a party's own related evidence.

Rule 37(e)(2) — intent to deprive:

only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may [the court]: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

The word "only" is the whole point of the 2015 amendment. These three remedies — the presumption, the adverse-inference instruction, and terminating sanctions — are unavailable without the intent finding, regardless of how careless the loss was or how badly it hurts the other side.

And note there is no prejudice requirement in tier two. Where intent to deprive is found, the rule does not additionally require a showing of prejudice; the inference of unfavourability substitutes for it.

Where a spoliation motion is actually won or lost

If you are moving, work the four thresholds before you argue about culpability. If you are defending, the restore-or-replace gate is usually the strongest ground, and it is factual rather than a matter of degree.

The rest of Rule 37, briefly

Rule 37(e) sits inside a larger sanctions scheme, and the neighbouring provisions catch conduct that subdivision (e) does not.

Failure to disclose or supplement — Rule 37(c)(1):

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

That exclusion is automatic — it operates without a motion. The court may additionally order payment of expenses, inform the jury of the party's failure, or impose the Rule 37(b)(2)(A)(i)–(vi) orders.

This is the provision behind most expert-disclosure fights. The guide on federal expert disclosures covers what Rule 26(a)(2) requires.

Failure to admit — Rule 37(c)(2): where a party fails to admit under Rule 36 and the requesting party later proves the document genuine or the matter true, the court "must so order" payment of the reasonable expenses of making that proof, including attorney's fees, unless:

(A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit.

Mandatory unless one of four exceptions applies. That is what gives requests for admission their weight — the guide on federal requests for admission covers the device.

Disobeying a discovery order — Rule 37(b)(2)(C): "the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust."

Must, not may. And it reaches the attorney advising the conduct as well as the party.

Failure to participate in the discovery plan — Rule 37(f):

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.

A sanction for stonewalling the Rule 26(f) conference itself, available without any underlying discovery dispute.

Preservation, practically

Rule 37(e)'s "reasonable steps" language is a standard rather than a checklist, but the threshold conditions point at what to be able to show:

1. When you concluded litigation was anticipated, and why.
2. What you did then — the hold notice, who received it, when, and how it was reinforced.
3. What you suspended — auto-deletion, retention schedules, device recycling.
4. What you collected, from which custodians and systems.
5. What, if anything, was nonetheless lost, and whether it exists elsewhere.

Item 5 is the one that decides the motion, because it goes to the restore-or-replace gate.

How the federal rule compares

California takes a different route to a similar place: its discovery statutes carry an express safe harbour providing that, absent exceptional circumstances, the court shall not sanction a party for ESI "lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system." The guide on California inspection demands covers it.

A short checklist

If you are moving for sanctions

1. Establish the duty to preserve and when it attached.
2. Show the steps taken were not reasonable — the absence of a hold, or its scope, is usually the point.
3. Prove the information cannot be restored or replaced. This is the gate most motions fail.
4. Ask for tier-one measures on prejudice, and frame them as no greater than necessary to cure it.
5. Only claim tier two if you can prove intent to deprive. Overreaching here can cost you the modest relief you would otherwise have had.

If you are defending one

1. Start with restore-or-replace. If the material exists anywhere else, Rule 37(e) does not apply.
2. Document the reasonableness of your steps — the hold, the suspension of auto-deletion, the collection.
3. Distinguish negligence from intent. The 2015 rule makes that distinction dispositive of the severe remedies.
4. Address prejudice separately. Tier one turns on it, and a loss that changed nothing supports no measures at all.

Where these rules live

• FRCP 16 — Pretrial conferences; scheduling; management
• FRCP 26 — Duty to disclose; general provisions governing discovery
• FRCP 33 — Interrogatories to parties
• FRCP 34 — Producing documents, electronically stored information, and tangible things
• FRCP 36 — Requests for admission
• FRCP 37 — Failure to make disclosures or to cooperate in discovery; sanctions
• FRCP 45 — Subpoena

This page explains what the rules say. It isn't legal advice, and when a duty to preserve attaches — and what counts as intent to deprive — are decided under case law this site doesn't cover.