Andrew Hebl

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The Federal Rules of Civil Procedure were amended effective December 1, 2006 to address concerns about discovery of electronically stored information. One of those amendments, Rule 37(e), created a safe harbor for parties who destroy relevant information as a result of the good faith, routine operation of their electronic storage systems. The rule recognizes the enhanced difficulty of preserving relevant information in the electronic context due to the automatic operation of electronic storage systems and the necessary deletion and modification of such systems' contents from time to time due to storage constraints and other technological limitations. The rule's good-faith requirement protects parties and addresses their concerns by precluding sanctions where conduct is not reckless or intentional, and applies after a duty to preserve relevant evidence has arisen. This article is the first to consider how courts have applied the rule since its adoption. In evaluating courts' performance, the article concludes that the rule has been misapplied and, in effect, rendered superfluous in that courts have continued to impose sanctions for insufficiently culpable conduct, or alternatively, have essentially ignored the rule by holding parties to a strict-liability standard. The end result is that problems created by electronically stored information in the destruction of evidence context have been left unaddressed. The article attempts to remedy this situation by proposing a framework for the proper application of Rule 37(e).

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Northern Illinois University Law Review

Suggested Citation

Andrew Hebl , Spoliation of Electronically Stored Information, Good Faith, and Rule 37(e), 29 N. Ill. U. L. Rev. 79 (2008).

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