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Federal E-Discovery: Rule 37(e) Absent in Decision Granting Harsh Sanction for ESI Spoliation

February 7, 2023

Litigation partners Chris Boehning and Dan Toal’s latest Federal E-Discovery column, “Rule 37(e) Absent in Decision Granting Harsh Sanction for ESI Spoliation,” appeared in the February 7 issue of the New York Law Journal. The authors discuss a recent decision in the Eastern District of Pennsylvania in Ace Am. Ins. Co. v. First Call Envtl. in which neither the court nor the parties raised Federal Rule of Civil Procedure 37(e) as part of a motion for sanctions over the spoliation of electronically stored information (ESI). Since 2015, Rule 37(e) has set forth the legal standard and process for determining whether a federal court should impose sanctions on a party for spoliation of ESI, resolving a circuit split on the topic. In Ace, the court imposed a harsh sanction on the defendant. It is hard to determine whether consideration under Rule 37(e) might have produced a different result on the facts, but the court’s analysis, at least, would have been different, the authors write. Deputy chair and counsel, e-discovery Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.

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