This survey illustrates the use and success of Rule 37(e) sanction motions in U.S. courts. This rule focuses on remedies where data that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and it cannot be remedied through further discovery.
Whilst this implies parties are taking discovery successfully, the risk will not ever totally disappear. Parties have to ensure that they fully understand and appreciate how they use data, where that data resides and how it can be preserved. With technologies continually evolving this will always be a challenge and one where there is no "one size fits all" solution.
It is important to fully understand how technology is actually used by individuals as well as how it should be used - and there is often a difference. Whilst cloud-technologies and the wider use of different devices makes working conditions more flexible, it also introduces more formal and informal mechanisms to communicate, store and use data - all of which need to be considered during a discovery exercise.
It is important we do not become complacent and apply broad assumptions when dealing with a discovery exercise, as situational factors will always have an impact, and need to be fully incorporated into the e-discovery approach.
“The End of Sanctions?: Rules, revisions and growing expertise are ‘De-Risking’ E-Discovery,” which reviewed nearly 700 federal and civil district court published opinions from 2012 to 2018, found that Rule 37(e) revisions and legal’s growing expertise are “de-risking e-discovery.” Still, some lawyers said the rule, while offering a uniform approach to e-discovery sanctions, doesn’t offset the rapidly escalating challenges of e-discovery.