Tip: Failure to produce electronically stored information may lead to sanctions

The e-discovery amendments to the Federal Rules of Civil Procedure (FRCP), which govern civil proceedings in federal courts, adapt existing rules and concepts to electronically stored information.

 

This is the seventh installment in a series that explains the so-called e-discovery rules.

 

Rule 37(e) provides that, absent exceptional circumstances, a court may not impose sanctions under these rules on a party that fails to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. This rule is sometimes referred to as the “safe harbor” provision, but many practitioners consider this a misnomer because concepts it embodies lack certainty. The rule does not guarantee protection against spoliation charges, even if the failure to preserve was the result of routine operation, for example.

 

Note that Rule 37(e) applies only to sanctions under FRCP. It does not prohibit sanctions under other regulatory authority, rules of professional responsibility, statutes, or common law. Whether the rule would prohibit a court from imposing sanctions pursuant to its inherent authority has been the subject of debate. Also, whether a particular discovery order is a “sanction” for purposed of this rule may not always be clear.

 

This tip is from The Practical Guide to Release of Information published by HCPro, Inc. Check future issues of EHR Connection for more information about the e-discovery rules.