In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison write that a proposed amendment to FRCP 37(e) is intended to bring some uniformity to the law governing sanctions in connection with the preservation of electronically stored information. Interestingly, three recent decisions hew very close to the approach adopted in the proposed amendment?one under which sanctions are generally unavailable absent a demonstration that a party has been prejudiced by the missing or destroyed evidence.
Race to a More Reasonable Sanctions Analysis
New York Law Journal
August 6, 2013