Skip to main content
Records Authority
Category: E-Discovery and Legal Holds

Federal Rule of Civil Procedure 37(e)

Also known as: FRCP 37(e), Rule 37(e), FRCP Rule 37(e)
Simply put

Federal Rule of Civil Procedure 37(e) is a provision in the United States federal court rules that addresses what happens when electronically stored information that should have been kept for a lawsuit is lost. It allows a court to take certain corrective measures when a party fails to take reasonable steps to preserve such information. It applies specifically to electronic information and to parties involved in litigation, rather than to all data loss generally.

Formal definition

Rule 37(e) of the Federal Rules of Civil Procedure, which replaced the earlier 2006 version of the provision, governs the loss of electronically stored information (ESI) that should have been preserved in the anticipation or conduct of litigation. The rule is triggered where such ESI is lost because a party failed to take reasonable steps to preserve it, and it authorizes and specifies the measures a court may employ in response. By its terms it is limited to ESI and applies only to parties, and it operates within the broader purpose of the Federal Rules to secure the just, speedy, and inexpensive determination of proceedings. Application depends on the facts of a given case and the governing jurisdiction; this entry describes the federal rule and should not be assumed to reflect equivalent state provisions.

Why it matters

Federal Rule of Civil Procedure 37(e) matters because it establishes the conditions under which a United States federal court may respond to the loss of electronically stored information (ESI) that should have been preserved for litigation. For records and information governance professionals, the rule connects everyday preservation practices to potential legal consequences: when a party fails to take reasonable steps to preserve relevant ESI, and that information is lost, the court is authorized to employ specified corrective measures. This links the design of retention schedules, legal hold processes, and preservation controls directly to litigation risk.

The rule is significant in part because it replaced the earlier 2006 version of the provision, reflecting an effort to bring greater structure to how courts address the loss of electronic information. Its scope is deliberately bounded: it applies specifically to ESI, not to all forms of data or record loss, and it applies only to parties involved in the litigation rather than to third parties generally. Understanding these boundaries helps organizations avoid overextending the rule's reach or assuming it governs situations to which it does not apply.

Rule 37(e) also operates within the broader purpose of the Federal Rules of Civil Procedure, which is to secure the just, speedy, and inexpensive determination of every action and proceeding. For governance teams, the practical takeaway is that defensible, documented preservation practices are what typically demonstrate the reasonable steps the rule contemplates. Because application depends heavily on the facts of a given case and the governing jurisdiction, the rule should not be treated as a universal standard; equivalent state provisions may differ, and this entry describes the federal rule only.

Who it's relevant to

Litigation and eDiscovery counsel
Legal teams managing discovery obligations rely on Rule 37(e) to understand the exposure that arises when ESI subject to preservation is lost. Because the rule addresses whether a party took reasonable steps to preserve information, counsel often work to establish and document those steps before and during litigation, recognizing that outcomes depend on the facts and the governing jurisdiction.
Records and information governance managers
Those responsible for retention schedules, legal holds, and preservation controls are directly affected because the rule ties the loss of ESI to potential court-imposed measures. Governance managers typically focus on ensuring that preservation processes can be shown to be reasonable, since it is the failure to take reasonable steps that brings the rule into play.
Compliance and risk professionals
Compliance and risk functions use awareness of Rule 37(e) to assess litigation-related risk associated with electronic information. Because the rule is bounded to ESI and to parties in litigation, these professionals should scope its relevance carefully and avoid treating it as a general standard for all data loss or as equivalent to state provisions that may differ.
IT and information systems teams
Technical teams that operate the systems where ESI is created and stored play a role in enabling reasonable preservation. Their configuration of retention, backup, and hold capabilities can affect whether relevant electronic information is retained when a preservation obligation arises, which is the factual terrain on which Rule 37(e) operates.

Inside FRCP 37(e)

Scope: electronically stored information (ESI)
The rule addresses the failure to preserve electronically stored information, rather than paper records or all evidence generally. Its provisions are engaged specifically where ESI that should have been preserved is lost.
Duty to preserve trigger
The rule applies where information should have been preserved in the anticipation or conduct of litigation. The underlying duty to preserve typically arises when litigation is reasonably anticipated, though the precise contours depend on the facts and governing case law within the relevant jurisdiction.
Reasonable steps and failure to preserve
The rule is concerned with ESI lost because a party failed to take reasonable steps to preserve it. Where reasonable steps were taken, the loss may not trigger the rule's remedial or sanctioning provisions in the same way.
Question of restoration or replacement
A relevant consideration is whether the lost information can be restored or replaced through additional discovery. If it can, the more serious consequences addressed by the rule may not be warranted.
Curative measures upon prejudice
Where another party is prejudiced by the loss, the court may order measures no greater than necessary to cure that prejudice. This is generally understood as a proportionate, remedial response rather than a punitive one.
Intent-based sanctions
More severe measures, such as adverse-inference instructions, presumptions unfavorable to the party, or dismissal, generally require a finding that the party acted with intent to deprive another party of the information's use in the litigation.

Common questions

Answers to the questions practitioners most commonly ask about FRCP 37(e).

Does Rule 37(e) apply to all types of evidence that might be lost or destroyed?
No. Rule 37(e), as a provision of the U.S. Federal Rules of Civil Procedure, addresses the loss of electronically stored information (ESI) specifically. It does not govern the spoliation of tangible physical evidence or non-electronic materials, which are typically handled under other legal doctrines or a court's inherent authority. Professionals should be careful not to treat the rule as a general spoliation standard covering every category of record or evidence.
Is any loss of electronically stored information enough to trigger sanctions under Rule 37(e)?
Not on its own. The rule is generally understood to apply only where several conditions are present together: the ESI should have been preserved in anticipation or conduct of litigation, it was lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. Mere loss of information, without these preconditions, does not by itself invoke the rule's remedies. The most severe measures typically depend on an additional finding related to a party's intent, so accidental or good-faith loss is treated differently from deliberate deprivation.
What does taking 'reasonable steps to preserve' ESI look like in practice?
Reasonableness is assessed in context rather than by a fixed checklist, and what qualifies often depends on the organization's circumstances, resources, and the significance of the matter. In practice it may involve identifying custodians and information sources likely to hold relevant ESI, issuing and monitoring a legal hold, suspending routine deletion or auto-expiry where it would affect relevant material, and documenting the actions taken. Because the standard is one of reasonableness and not perfection, organizations should focus on defensible, proportionate, and well-documented processes.
How does Rule 37(e) interact with an organization's routine retention and disposition schedules?
Routine, good-faith operation of a retention schedule that results in disposition before a preservation duty arises is generally viewed differently from loss occurring after that duty attaches. Once litigation is reasonably anticipated, the preservation obligation typically takes precedence over normal disposition for the affected information, meaning scheduled destruction may need to be suspended for material within scope. Organizations often coordinate their records schedules with legal hold procedures so that disposition can be paused selectively without disrupting the broader program.
When should an organization begin preserving ESI in anticipation of litigation?
The duty to preserve is commonly understood to arise when litigation is reasonably anticipated, which may precede the actual filing of a complaint. The precise triggering point is fact-specific and can depend on the circumstances of a given matter and jurisdiction, so organizations often err toward earlier identification and preservation once credible indicators of a dispute appear. Establishing clear internal criteria and escalation paths for recognizing that trigger can support a more consistent and defensible response.
What can organizations do to reduce exposure to sanctions under Rule 37(e)?
Practical measures often include maintaining a documented legal hold process, mapping information sources and custodians so relevant ESI can be identified quickly, integrating hold procedures with retention and disposition controls, and keeping records of the preservation decisions and steps taken. Because the rule distinguishes between failures to take reasonable steps and conduct suggesting intent to deprive another party of information, contemporaneous documentation of good-faith efforts is generally valuable. The appropriateness of specific measures depends on organizational context, and legal counsel is typically involved in shaping the approach for a given matter.

Common misconceptions

Rule 37(e) governs the destruction of all records and evidence.
The rule as described here is directed specifically at the loss of electronically stored information. It should not be treated as a general standard for all forms of evidence, and its recordkeeping relevance centers on the preservation of ESI once a duty to preserve has arisen.
Any loss of relevant ESI automatically results in severe sanctions.
The rule contemplates a graduated response. Where a party took reasonable steps to preserve, or where the information can be restored or replaced, the more serious consequences may not apply. The harshest measures generally depend on a finding of intent to deprive another party of the information.
Routine deletion under a retention schedule is inherently improper once litigation is possible.
The rule is engaged when information that should have been preserved is lost through a failure to take reasonable steps. Whether ordinary disposition activity becomes problematic typically depends on when the duty to preserve was triggered and whether reasonable preservation steps were taken, which are fact-specific questions.

Best practices

Establish clear criteria and internal procedures for recognizing when litigation is reasonably anticipated, since this typically governs when the duty to preserve ESI arises.
Implement documented legal hold processes that suspend routine disposition of potentially relevant ESI and record the reasonable steps taken to preserve it.
Maintain defensible, well-documented retention and disposition schedules so that ordinary destruction can be distinguished from a failure to preserve once a preservation obligation exists.
Identify sources of relevant ESI early and assess whether lost information could be restored or replaced through backups or other sources before assuming irreparable loss.
Retain evidence of preservation decisions and actions to demonstrate the absence of intent to deprive, since intent is generally central to the more severe consequences the rule allows.
Coordinate closely among records management, IT, legal, and information governance functions, and seek jurisdiction-specific legal advice, as application of the rule depends on the governing court and case law.