What is Reasonable in the Context of 37(E)

Thomas Y. Allman Chair emeritus of Working Group 1 of the Sedona Conference® recently discussed the important topic of identifying reasonable steps for compliant conduct under 37(e). Unfortunately, the revised Rule makes no attempt to define “reasonable steps,” leaving it to the trial court to weigh fact-sensitive differences, while risking inconsistent rulings across the country.
“[Rule 37](e) Failure to Provide Preserve Electronically Stored Information. If electronically stored information 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 restored or replaced through additional discovery, the court: [may undertake the listed actions in Subsections (1) or (2)]4.
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