Charles Yablon


New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is—does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of current litigation practice. It argues that Rule 37(e) is best understood as an attempt to clarify the risk assessments made by corporate agents supervising ESI preservation and discovery efforts. The Rule seeks to provide assurance that their actions (and inactions), if they are reasonable and without malevolent intent, will not subject the company to severe sanctions. This Essay also shows, however, that to provide the proper incentives, the Rule must also be interpreted to permit courts to impose severe sanctions for egregious and systematic ESI loss, even if caused by managerial inaction and even if proven circumstantially without direct evidence of culpable intent. It contains an extended analysis of CAT3 LLC, an important case decided under the new Rule, which illustrates some of these points. Finally, drawing from analogous corporate law cases involving managerial duties to monitor employee misconduct, this Essay argues that federal courts can and should, consistent with Rule 37(e), find that there is a duty on many corporate parties to implement and maintain a reasonable system of information governance and ESI retention, and that a conscious decision not to do so can give rise to severe penalties under the new Rule.