eDiscovery Rules

Rule 37 [Safe Harbor]

Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions

(f) Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Rule 37 Summary

This rule provides a safe harbor against discovery sanctions for failure to produce electronically stored information (ESI) that was destroyed as part of the good-faith operation of a data management system.

Rule 37 Checklist

  • Review your client’s document retention and management policies
  • Ensure compliance with statutory and regulatory retention requirements – this safe harbor only applies to discovery sanctions.

Other E-Discovery Rules

Rules 16(B) and 26(F) [Meet & Confer]
Rule 26(B)(2) [Duty of Disclosure]
Rule 26(B)(5) [Privilege Claims]
Rule 34 [Forms of Production]