FRCP 37(e) Explained: What Reasonable Steps Actually Means
What the rule says
Federal Rule of Civil Procedure 37(e) applies when electronically stored information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced. The rule then sets out what a court may do about it. The key words are reasonable steps, lost, and cannot be restored.
When the duty to preserve begins
The duty starts when litigation is reasonably anticipated, not when it is filed. That is often earlier than teams expect. From that point, relevant ESI has to be preserved, which is why a prompt and documented legal hold matters so much.
Reasonable steps in practice
Reasonable steps does not mean preserving everything forever. It means a proportionate, documented effort to preserve what is relevant: identifying custodians, issuing holds, suspending routine deletion where needed, and recording what you did. A process that produced its own evidence as it ran is far easier to defend than one reconstructed later.
The two tiers of remedy
The rule has two levels. Under 37(e)(1), if the loss prejudices another party, a court may order measures no greater than necessary to cure the prejudice. Under 37(e)(2), if a party acted with the intent to deprive another of the information, a court may go further, including an adverse inference instruction or dismissal. Intent is the line between a cure and a serious sanction.
How to stay on the right side of it
- Trigger preservation when litigation is reasonably anticipated, not later.
- Issue and document holds promptly through an automated process.
- Suspend routine deletion for the data in scope.
- Keep an audit trail that shows the reasonable steps you took.
The mechanics are covered in how to automate legal hold and the eDiscovery workflow automation guide.
Frequently asked questions
What does FRCP 37(e) require?
That a party take reasonable steps to preserve electronically stored information once litigation is reasonably anticipated. If such information is lost and cannot be restored, the rule sets out what a court may do.
When does the duty to preserve ESI begin?
When litigation is reasonably anticipated, which is often before a case is filed, not when it is served.
What are the sanctions under FRCP 37(e)?
Under 37(e)(1) a court may order measures to cure prejudice from the loss. Under 37(e)(2), where a party intended to deprive another of the information, it may impose an adverse inference or dismissal.