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

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Amendments Effective Dec. 1, 2015

\r\nAmendments | Summary of Changes | Committee Note | Complete Amended Rule | Additional Resources\r\nRule 37 Amendments in Complete Rule: (a)(3)(B)(iv) | (e)\r\n\r\n


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Amended Rule 37

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(a) Motion for an Order Compelling Disclosure or Discovery.

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(3) Specific Motions.

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(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

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(iv) a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34.[CN 1]

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(e) Failure to ProvidePreserve 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.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:[CN 2]

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(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or[CN 3]

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(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

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(A) presume that the lost information was unfavorable to the party;

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(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

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C) dismiss the action or enter a default judgment.[CN 4]

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AmendedEffective
Apr. 29, 2015Dec. 1, 2015
Apr. 16, 2013Dec. 1, 2013
Apr. 30, 2007Dec. 1, 2007
Apr. 12, 2006Dec. 1, 2006
Apr. 17, 2000Dec. 1, 2000
Apr. 22, 1993Dec. 1, 1993
Mar. 2, 1987Aug. 1, 1987
Oct. 21, 1980Oct. 1, 1981
Apr. 29, 1980Aug. 1, 1980
Mar. 30, 1970July 1, 1970
Dec. 29, 1948Oct. 20, 1949

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Summary of Changes

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Committee Note

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[CN 1] Subdivision (a). Rule 37(a)(3)(B)(iv) is amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. This change brings item (iv) into line with paragraph (B), which provides a motion for an order compelling “production, or inspection.”

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[CN 2] Subdivision (e). Present Rule 37(e), adopted in 2006, provides: “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.” This limited rule has not adequately addressed the serious problems resulting from the continued exponential growth in the volume of such information. Federal circuits have established significantly different standards for imposing sanctions or curative measures on parties who fail to preserve electronically stored information. These developments have caused litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if a court finds they did not do enough.

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New Rule 37(e) replaces the 2006 rule. It authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used. The rule does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim.

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The new rule applies only to electronically stored information, also the focus of the 2006 rule. It applies only when such information is lost. Because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.

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The new rule applies only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it. Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises.

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In applying the rule, a court may need to decide whether and when a duty to preserve arose. Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed.

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Although the rule focuses on the common-law obligation to preserve in the anticipation or conduct of litigation, courts may sometimes consider whether there was an independent requirement that the lost information be preserved. Such requirements arise from many sources — statutes, administrative regulations, an order in another case, or a party’s own information-retention protocols. The court should be sensitive, however, to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation. The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.

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The duty to preserve may in some instances be triggered or clarified by a court order in the case. Preservation orders may become more common, in part because Rules 16(b)(3)(B)(iii) and 26(f)(3)(C) are amended to encourage discovery plans and orders that address preservation. Once litigation has commenced, if the parties cannot reach agreement about preservation issues, promptly seeking judicial guidance about the extent of reasonable preservation may be important.

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The rule applies only if the information was lost because the party failed to take reasonable steps to preserve the information. Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible. As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. This rule recognizes that “reasonable steps” to preserve suffice; it does not call for perfection. The court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.

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Because the rule calls only for reasonable steps to preserve, it is inapplicable when the loss of information occurs despite the party’s reasonable steps to preserve. For example, the information may not be in the party’s control. Or information the party has preserved may be destroyed by events outside the party’s control — the computer room may be flooded, a “cloud” service may fail, a malign software attack may disrupt a storage system, and so on. Courts may, however, need to assess the extent to which a party knew of and protected against such risks.

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Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues. A party urging that preservation requests are disproportionate may need to provide specifics about these matters in order to enable meaningful discussion of the appropriate preservation regime.

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When a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, and the information is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost information can be restored or replaced through additional discovery. Nothing in the rule limits the court’s powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule 26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If the information is restored or replaced, no further measures should be taken. At the same time, it is important to emphasize that efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information to claims or defenses in the litigation. For example, substantial measures should not be employed to restore or replace information that is marginally relevant or duplicative.

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[CN 3] Subdivision (e)(1). This subdivision applies only if information should have been preserved in the anticipation or conduct of litigation, a party failed to take reasonable steps to preserve the information, information was lost as a result, and the information could not be restored or replaced by additional discovery. In addition, a court may resort to (e)(1) measures only “upon finding prejudice to another party from loss of the information.” An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information’s importance in the litigation.

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The rule does not place a burden of proving or disproving prejudice on one party or the other. Determining the content of lost information may be a difficult task in some cases, and placing the burden of proving prejudice on the party that did not lose the information may be unfair. In other situations, however, the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures to prove prejudice may be reasonable in such situations. The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.

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Once a finding of prejudice is made, the court is authorized to employ measures “no greater than necessary to cure the prejudice.” The range of such measures is quite broad if they are necessary for this purpose. There is no all-purpose hierarchy of the severity of various measures; the severity of given measures must be calibrated in terms of their effect on the particular case. But authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect. Much is entrusted to the court’s discretion.

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In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies. Care must be taken, however, to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information’s use in the litigation. An example of an inappropriate (e)(1) measure might be an order striking pleadings related to, or precluding a party from offering any evidence in support of, the central or only claim or defense in the case. On the other hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve other evidence that might contradict the excluded item of evidence.

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[CN 4] Subdivision (e)(2). This subdivision authorizes courts to use specified and very severe measures to address or deter failures to preserve electronically stored information, but only on finding that the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation. It is designed to provide a uniform standard in federal court for use of these serious measures when addressing failure to preserve electronically stored information. It rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.

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Adverse-inference instructions were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction.

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Similar reasons apply to limiting the court’s authority to presume or infer that the lost information was unfavorable to the party who lost it when ruling on a pretrial motion or presiding at a bench trial. Subdivision (e)(2) limits the ability of courts to draw adverse inferences based on the loss of information in these circumstances, permitting them only when a court finds that the information was lost with the intent to prevent its use in litigation.

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Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it. The subdivision does not apply to jury instructions that do not involve such an inference. For example, subdivision (e)(2) would not prohibit a court from allowing the parties to present evidence to the jury concerning the loss and likely relevance of information and instructing the jury that it may consider that evidence, along with all the other evidence in the case, in making its decision. These measures, which would not involve instructing a jury it may draw an adverse inference from loss of information, would be available under subdivision (e)(1) if no greater than necessary to cure prejudice. In addition, subdivision (e)(2) does not limit the discretion of courts to give traditional missing evidence instructions based on a party’s failure to present evidence it has in its possession at the time of trial.

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Subdivision (e)(2) requires a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. This finding may be made by the court when ruling on a pretrial motion, when presiding at a bench trial, or when deciding whether to give an adverse inference instruction at trial. If a court were to conclude that the intent finding should be made by a jury, the court’s instruction should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds that the party acted with the intent to deprive another party of the information’s use in the litigation. If the jury does not make this finding, it may not infer from the loss that the information was unfavorable to the party that lost it.

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Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Subdivision (e)(2) does not require any further finding of prejudice.

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Courts should exercise caution, however, in using the measures specified in (e)(2). Finding an intent to deprive another party of the lost information’s use in the litigation does not require a court to adopt any of the measures listed in subdivision (e)(2). The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.

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Complete Amended Rule 37

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

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(a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY.

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(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

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(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.

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(3) Specific Motions.

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(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.

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(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

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(i) a deponent fails to answer a question asked under Rule 30 or 31;

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(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);

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(iii) a party fails to answer an interrogatory submitted under Rule 33; or

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(iv) a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34.

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(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

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(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

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(5) Payment of Expenses; Protective Orders.

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(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:

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(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

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(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or

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(iii) other circumstances make an award of expenses unjust.

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(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

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(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

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(b) FAILURE TO COMPLY WITH A COURT ORDER.

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(1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.

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(2) Sanctions Sought in the District Where the Action Is Pending.

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(A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent — or a witness designated under Rule 30(b)(6) or 31(a)(4) — fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include\r\nthe following:

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(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

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(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from\r\nintroducing designated matters in evidence;

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(iii) striking pleadings in whole or in part;

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(iv) staying further proceedings until the order is obeyed;

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(v) dismissing the action or proceeding in whole or in part;

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(vi) rendering a default judgment against the disobedient party; or

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(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

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(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)–(vi), unless the disobedient party shows that it cannot produce the other person.

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(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

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(c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE, OR TO ADMIT.

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(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

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(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

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(B) may inform the jury of the party’s failure; and

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(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).

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(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless:

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(A) the request was held objectionable under Rule 36(a);

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(B) the admission sought was of no substantial importance;

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(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

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(D) there was other good reason for the failure to admit.

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(d) PARTY’S FAILURE TO ATTEND ITS OWN DEPOSITION, SERVE ANSWERS TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPECTION.

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(1) In General.

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(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

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(i) a party or a party’s officer, director, or managing agent — or a person designated under Rule 30(b)(6) or 31(a)(4) — fails, after being served with proper notice, to appear for that person’s deposition; or

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(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

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(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

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(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).

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(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

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(e) Failure to ProvidePreserve 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.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:

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(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

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(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

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(A) presume that the lost information was unfavorable to the party;

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(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

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C) dismiss the action or enter a default judgment.

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(f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.

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Additional Resources

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ArticleAuthorsPublication & DateRules Discussed
ArticleAuthorsPublication & DateRules Discussed
4 Times Federal Courts Already Applied the New FRCP Amendments in E-Discovery
(registration required)
Zach Warren, Legaltech NewsLegaltech News, March 2, 2016R.26(b)(1)
R.37(e)
Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: eDiscovery Case Law
Doug Austin (eDiscovery Daily)eDiscovery Daily, February 8, 2016R.37(e)
Preparing for FRCP Changes with EnCase eDiscovery
(registration required)
Guidance SoftwareGuidance Software, December 2015R.26(b)(1)
R.37(e)
Courts Are Starting to Apply and Interpret FRCP Amendments on e-DiscoveryJoshua M. Hummel (Fox Rothschild)The E-Discovery Stage, December 10, 2015R.26(b)(1)
IG And The New FRCP Rules
(registration required)
Jason R. Baron (Drinker Biddle & Reath LLP)Legaltech news, December 7, 2015R.37(e)
The 2015 Amendments: A Sensible Approach to Spoliation Sanctions?
(registration required)
Scott A. Wandstrat (Arnall Golden Gregory)Daily Report, December 4, 2015R.37(e)
The New Federal Rules Are Taking EffectEmily Dimond (Reed Smith)
Courtney Murphy (Reed Smith)
JD Supra Business Advisor, December 2, 2015R.26(b)(1)
R.34(b)(2)
R.37(e)
Everything You Need to Know About The New FRCP AmendmentsJeff Bennion (Estey & Bomberger LLP)Above the Law, December 1, 2015R.26(b)(1)
R.37(e)
Congratulations! Now what?Karin Scholz Jenson (Baker & Hostetler LLP)BakerHostetler's Discovery Advocate, December 1, 2015R.26(f)
R.34
3 Ways FRCP Amendments Could Affect CompaniesRebekah Mintzer (Corporate Counsel)Corporate Counsel, December 1, 2015R.01
R.04
R.34
R.37
Discovery related amendments to the Federal Rules
(subscription required)
David J. Kessler (Norton Rose Fulbright)
Jami Mills Hibbert (Norton Rose Fulbright)
Alexander Steven Altman (Norton Rose Fulbright)
Norton Rose Fulbright website, December 1, 2015R.01
R.26(b)(1)
R.26(c)
R.34(2)(A)
R.34(2)(B)
R.34(2)(C)
R.37(e)
Federal Rules of Civil Procedure Ediscovery
Guide

(download)
Kroll OntrackDecember 2015R.01
R.16
R.26
R.34
R.37
FRCP Amendments Take Effect, Impacting E-Discovery Practice
(registration required)
H. Christopher Boehning (Paul, Weiss, Rifkind, Wharton & Garrison)
Daniel J. Toal (Paul, Weiss, Rifkind, Wharton & Garrison. Ross M. Gotler)
Lidia M. Kekis (Paul, Weiss, Rifkind, Wharton & Garrison)
New York Law Journal, December 1, 2015R.01
R.26
R.37
Early and Often
(download)
Salvatore Mancuso (RVM Enterprises, Inc.)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.04(m)
R.16(b)(1)(A)
R.16(b)(1)(B)
R.16(b)(2)(B)
R.26(f)
Gear Up for Acceleration and Collaboration
(download)
Mark E. McGrath (Sheppard Mullin Richter & Hampton LLP)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.04(m)
R.16(b)(1)
R.16(b)(2)
R.16(b)(3)(B)(v)
R.26(d)(2)
R.26(f)
R.34
Changes Favor Well-Prepared Parties
(download)
Tom Spaulding (Inventus LLC)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.16(b)(1)(B)
R.16(b)(2)
R.16(b)(3)(B)(v)
R.26(f)
Getting to the Heart of the Matter
(download)
Aaron Pierce (LexisNexis Litigation Software)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.26(b)(1)
Proportion – Not Perfection
(download)
Makenzie Windfelder (McCarter & English LLP)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.37(e)
No Time to Relax
(download)
Olivia Gerroll (D4, LLC)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.37(e)
The Real Problem: Technology
(download)
Dan Regard (iDiscovery Solutions)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11
Proportionality: Old Wine, New Bottle?
(download)
Anthony M. Candido (Clifford Chance LLP)
Sarah A. Sulkowski (Clifford Chance LLP)
Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.26(b)(1)
R.26(b)(2)(C)(iii)
Insofar As Just and Practicable
(download)
Mark Euler (Epiq Systems)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11
A Discovery Sideshow?
(download)
Maureen O’Neill (DiscoverReady)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.26(b)(1)
R.26(b)(2)(C)
R.26(f)
Low Pro le, High Impact
(download)
Aarin Scholz Jenson (BakerHostetler)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.26(f)
R.34(2)(B)
Relief from ESI Over-Preservation
(download)
Carmen G. McLean (Jones Day)Metropolitan Corporate Counsel Civil Justice Playbook, Perspectives on Procedure, December 2015, Vol. 23, No. 11R.26(b)(1)
R.37(e)
R.37(e)(1)
R.37(e)(2)
Conclusion: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Are you Ready?Karin Scholz Jenson (Baker & Hostetler LLP)
Gary Levin (Baker & Hostetler LLP)
Robert J. Tucker (Baker & Hostetler LLP)
James A. Sherer (Baker & Hostetler LLP)
Jonathan Forman (Baker & Hostetler LLP)
BakerHostetler's Discovery Advocate, November 30, 2015
Important Changes to the Federal RulesAlexander Rothschild (Womble Carlyle Sandridge & Rice, LLP)
Louis Rousseau (Womble Carlyle Sandridge & Rice, LLP)
JD Supra Business Advisor, November 30, 2015R.04(m)
R.16(b)(1(B)
R.16(b)(2)
R.26(b)(1)
R.26(d)(2)
R.26(f)(3)(C)
R.37(e)(1)
R.37(e)(2)
ESI & eDiscovery FRCP changes @ 12/1/15 — while you were leftover-eatingRobert D. Brownstone (Fenwick & West LLP)Lexology, November 29, 2015R.04(m)
R.16(b)
R.16(c)
R.26(b)(1)
R.26(c)
R.26(d)
R.26(f)
R.34(b)
R.37(e)
Amendments to Federal Civil Rules Governing Discovery and Preservation of ESI Set to Take Effect December 1, 2015Tony Lathrop (Moore & Van Allen PLLC)JD Supra Business Advisor Litigation Blog, November 25, 2015R.01
R.04
R.04(d)
R.16
R.26
R.30
R.31
R.33
R.34
R.36
R.37(a)
R.37(e)
R.55(c)
R.84
Day 4: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Rule 34 ObjectionsKarin Scholz Jenson (Baker & Hostetler LLP)
Gary Levin (Baker & Hostetler LLP)
Robert J. Tucker (Baker & Hostetler LLP)
James A. Sherer (Baker & Hostetler LLP)
Jonathan Forman (Baker & Hostetler LLP)
BakerHostetler's Discovery Advocate, November 25, 2015R.34
Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – PreservationKarin Scholz Jenson (Baker & Hostetler LLP)
Gary Levin (Baker & Hostetler LLP)
Robert J. Tucker (Baker & Hostetler LLP)
James A. Sherer (Baker & Hostetler LLP)
Jonathan Forman (Baker & Hostetler LLP)
BakerHostetler's Discovery Advocate, November 24, 2015R.16
R.26
R.37(e)
ACEDS Interview: Judge Paul Grimm Explains the New Federal RulesJason KrauseACEDS website, November 24, 2015R.16
R.26
Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case AssessmentKarin Scholz Jenson (Baker & Hostetler LLP)
Gary Levin (Baker & Hostetler LLP)
Robert J. Tucker (Baker & Hostetler LLP)
James A. Sherer (Baker & Hostetler LLP)
Jonathan Forman (Baker & Hostetler LLP)
BakerHostetler's Discovery Advocate, November 23, 2015R.16
R.26
R.34
R.37
Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – ProportionalityKarin Scholz Jenson (Baker & Hostetler LLP)
Gary Levin (Baker & Hostetler LLP)
Robert J. Tucker (Baker & Hostetler LLP)
James A. Sherer (Baker & Hostetler LLP)
Jonathan Forman (Baker & Hostetler LLP)
BakerHostetler's Discovery Advocate, November 20, 2015R.26
Wait, What Does Spoliation Mean Now? A Look at the New FRCP Rule 37(e)
(subscription required)
Zach Warren (Legaltech News)Legaltech News, November 17, 2015R.37(e)
A Second Look At “Reasonable Steps”: A New Role For a Familiar eDiscovery ConceptThomas Y. AllmanBloomberg Law, November 13, 2015R.16
R.26(b)
R.37(e)
Proportionality and the Scope of Discovery in 2015 Amendments
(registration required)
Scott A. Wandstrat (Arnall Golden Gregory)Daily Report, November 6, 2015R.26(b)(1)
A New Era of Cooperation for E-Discovery Rules?
(registration required)
Scott A. Wandstrat (Arnall Golden Gregory)Daily Report, October 9, 2015R.01
The 2015 Civil Rules Package As Transmitted to CongressThomas Y. AllmanDefense Counsel Journal, October 2015R.01
R.04(m)
R.16(b)(1)
R.16(b)(2)
R.16(b)(3)(B)
R.16(b)(3)(B)(iii)
R.26(b)(1)
R.26(b)(2)(B)
R.26(b)(2)(C)(iii)
R.26(c)
R.26(c)(1)(B)
R.26(d)(2)
R.26(d)(3)
R.26(f)
R.26(f)(3)(C)
R.26(f)(3)(D)
R.26(g)
R.30
R.30(a)(2)
R.31
R.33
R.34
R.34(b)(2)(A)
R.34(b)(2)(B)
R.34(b)(2)(C)
R.36
R.37(a)(3)(B)(iv)
R.37(b)(2)(A)
R.37(e)
R.37(e)(1)
R.37(e)(2)
R.55(c)
Issuing Timely Litigation Holds in Auto-Delete Environments: The Case Law and the New F.R.C.P. 37
(download)
Anne Kershaw (Knowledge Strategy Solutions)
Brian Ramkissoon
August 11, 2015R.37(e)
Just Follow the Rules! FRCP amendments could be e-discovery game changer
(download)
Jennifer A. Brennan (iDiscovery Solutions)
John M. Facciola (Retired U.S. Magistrate Judge)
Mary M. Rowland (U.S. Magistrate Judge, Northern District of Illinois)
Metropolitan Corporate Counsel, July/August 2015R.16
R.26(b)
R.34
R.37(e)
New Rules, New Opportunities
(download)
David G. Campbell (U.S. District Court Judge, District of Arizona)99 Judicature, no. 3, Winter 2015, at 18–25R.01
R.04
R.16
R.26
R.34
R.37
R.84
The Nuts and Bolts
(download)
David F. Levi (Duke Law School)
David G. Campbell (U.S. District Court Judge, District of Arizona)
John G. Koetl (U.S. District Court Judge, Southern District of New York)
Chilton Varner (King & Spalding)
Derek P. Pullan (Judge, Utah Fourth Judicial District)
99 Judicature, no. 3, Winter 2015, at 26-34R.16
R.26
R.37
R.84
Rule 37(e) - The New Law of Electronic Spoliation
(download)
Gregory P. Joseph (Hage Aaronson LLC)99 Judicature, no. 3, Winter 2015, at 35-42R.37
From Rule Text to Reality - Achieving Proportionality in Practice
(download)
Lee H. Rosenthal (U.S. District Court Judge, Southern District of Texas)
Steven S. Gensler (University of Oklahoma College of Law)
99 Judicature, no. 3, Winter 2015, at 43-46R.01
R.16
R.26
R.34
Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality
(download)
Duke Law School Center for Judicial Studies99 Judicature, no. 3, Winter 2015, at 47–60R.16
R.26
R.34
R.37
The New ESI Sanctions Framework Under the Proposed Rule 37(e) AmendmentsPhilip Favro (Recommind)Richmond Journal of Law & Technology, Volume XXI, Issue 3, March 20, 2015R.37(e)
The 2015 Civil Rules Package As Approved By the Judicial ConferenceThomas Y. AllmanAmerican Bar Association, March 11, 2015R.01
R.04
R.16
R.26
R.26(b)
R.26(c)
R.30
R.31
R.33
R.34
R.36
R.37
R.37(e)
1st Annual Federal Judges Survey: E-Discovery Best Practices & Trends
(download, registration required)
ExterroFebruary 2, 2015R.26(b)(1)
What Does the Future of E-Discovery Look Like Under the (soon to be) Updated FRCP? A ROUNDTABLE PANEL DISCUSSION
(download, registration required)
ExterroNovember 3, 2014
Advisory Committee Makes Unexpected Changes to 37(e), Approves Duke PackageTera E. Brostoff (Bloomberg BNA)Bloomberg BNA, April 11, 2014R.37(e)
[/su_tab]\r\n[su_tab title=”Conferences“]
ConferenceDate & LocationSpeakers & ModeratorsRules Discussed
ConferenceDate & LocationSpeakers & ModeratorsRules Discussed
K&L Gates, Federal Rule Changes Affect e-Discovery - Are You Ready This Time? (Pittsburgh)
(registration required)
December 3, 2015, 8:30 am - 12:15 pm Eastern, Pittsburgh
K&L Gates, Federal Rule Changes Affect e-Discovery - Are You Ready This Time? (Seattle)
(registration required)
December 1, 2015, 1:30 - 5:30 pm Pacific, Seattle
The American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies, Hello “Proportionality,” Goodbye “Reasonably Calculated”: Reinventing Case Management and Discovery Under the ​2015 Civil Rules Amendments
(registration & payment required)
Nov. 10, 2015: New York City
Nov. 12, 2015: Philadelphia
Nov. 12, 2015: Newark
Dec. 3, 2015: St. Louis
Dec. 4, 2015: Atlanta
Dec. 7, 2015: Chicago
Dec. 8, 2015: Washington, DC
Jan. 27, 2016: Los Angeles
Jan. 28, 2016: San Francisco
March 3, 2016: Phoenix
March 4, 2016: Denver
March 31, 2016: Dallas
TBD: Miami
Lee H. Rosenthal (U.S. District Court Judge, Southern District of Texas)
Steven S. Gensler (University of Oklahoma College of Law)
[/su_tab]\r\n[su_tab title=”Decisions“]
NameRules Discussed
NameRules Discussed
INTERNMATCH, INC. v. NXTBIGTHING, LLC, Case No. 14-cv-05438-JST. (N.D.CA. Feb. 8, 2016)R.37(e)
Kissing Camels Surgery Center v. Centura Health Corporation (D. Colo., Jan. 22, 2016)R.34
Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016)R.37(e)
Gilead Sciences v. Merck (N.D. Cal. Jan. 13, 2016)R.26(b)(1)
CAT3 v. Black Lineage (S.D.N.Y. Jan. 12, 2016)R.37(e)
[/su_tab]\r\n[su_tab title=”Presentations“]
PresentationAuthorRules Discussed
PresentationAuthorRules Discussed
Proposed Civil Rules Amendments
(download)
John Barkett (Shook, Hardy & Bacon, L.L.P.)R.01
R.04
R.16
R.26
R.34
R.37
R.84
[/su_tab]\r\n[su_tab title=”Webinars“]
WebinarDateSpeakers & ModeratorsRules Discussed
WebinarDateSpeakers & ModeratorsRules Discussed
Clear Law Institute webinar, The 2015 Amendments to the FRCP, Part II: Rule 26, Proportionality, Judicial Intervention, and Mastering the Discovery Juggernaut
(registration & payment required)
January 21, 2016, 12:00 - 1:30 pm CentralKenneth R. Berman, Moderator (Nutter McClennen & Fish LLP)
Charles R. Bennett Jr.
John G. Koeltl (Judge, U.S. District Court for the Southern District of New York)
Martha Mazzone (Fidelity Investments)
Carmen G McLean
R.26(f)
Clear Law Institute webinar, New eDiscovery Federal Rules Changes
(registration & payment required)
December 18, 2015, 2:00 - 3:15 pm CentralRobert D. Brownstone (Fenwick & West LLP)R.26
R.26(f)
R.37(e)
Bloomberg BNA webinar, An Ounce of Prevention: What Patent Litigators and Litigants Need to Know About Amendments to the Federal Rules
(registration & payment required)
December 16, 2015, 10:00 - 11:00 am CentralWilliam Cory Spence (SpencePC)
Kenneth R. Adamo (Kirkland & Ellis LLP)
Bloomberg BNA webinar, Amending the Federal Rules: Intended and Unintended Consequences
(registration required)
December 8, 2015, 12:00 - 1:30 pm CentralRonald Hedges (Ronald J. Hedges LLC)
Craig B. Shaffer (U.S. Magistrate Judge, District of Colorado)
Thomas Y. Allman (University of Cincinnati College of Law)
Kenneth J. Withers (The Sedona Conference)
Dena C. Sharp (Girard Gibbs LLP)
Ariana J. Tadler (Milberg LLP)
Nextpoint webinar, Changes to the Federal Rules of Civil Procedure (Winter '15)
(registration required)
December 3, 2015, 1:30 - 2:00 pm CentralJulianne Walsh (Nextpoint)
Exterro E-Discovery Day webinar, 3 E-Discovery Trends You Need to Prepare for in 2016
(on-demand, registration required)
December 1, 2015, 4:30 - 5:30 pm CentralBill Tolson (Director of Product Marketing, Actiance)
Patrick Fuller (Director of Legal Analytics, ELM Solutions)
David Houlihan (Principal Analyst, Blue Hill Research)
EDRM E-Discovery Day webinar, Using Advanced Analytics Techniques to Meet the Proportionality Requirements of the new Federal Rules
(registration required)
December 1, 2015, 3:00 - 4:00 pm CentralBob Ambrogi (Legal Journalist and Director of Communications, Catalyst)
George Socha (Co-Founder, EDRM)
John Tredennick (Founder & CEO, Catalyst)
Gabe Luchetta (Product Manager, Catalyst)
Exterro E-Discovery Day webinar, Make Your Job Easier with
E-Discovery Technology

(on-demand, registration required)
December 1, 2015, 3:00 - 4:00 pm CentralDavid Yerich (Director of E-Discovery, UnitedHealth Group)
Tom Mullane (E-Discovery Specialist, United Technology Corporation)
Tara Jones (Lead Paralegal - E-Discovery and Consumer Litigation, AOL, Inc.)
M. Lee Smith Publishers/BLR E-Discovery Day webinar, Amendments to Federal E-Discovery Rules Take Effect December 1: Are You Ready?
(registration required)
December 1, 2015, 2:00 - 3:00 pm CentralTom Shaw (Assistant General Counsel; Legal Department, CCA Facility Support Center, Nashville)
W. Russell Taber, III (Attorney; Riley Warnock & Jacobson PLC, in Nashville)
EDRM E-Discovery Day webinar, eMSAT-1: Understand and Acting on the Results
(on-demand, registration required)
December 1, 2015, 1:30 - 2:30 pm CentralGeorge Socha (Co-Founder, EDRM)
Tom Gelbmann (Co-Founder, EDRM)
Tiana Van Dyk (Litigation Support Manager, Burnet, Duckworth & Palmer LLP)
Exterro E-Discovery Day webinar, Predictive Coding 3.0
(on-demand, registration required)
December 1, 2015, 1:30 - 2:00 pm CentralRalph Losey (E-Discovery Blogger / Attorney, e-Discovery Team Blog)
Actiance E-Discovery Day webinar, FRCP Changes: What, Exactly, are Reasonable Steps to Preserve ESI?
(registration required)
December 1, 2015, 1:00 - 2:00 pm CentralRobert A. Cruz (Senior Director of Information Governance, Actiance, Inc.)
Bill Tolson (Director of Product Marketing, Actiance)
Exterro E-Discovery Day webinar, Taking Advantage of the New FRCP E-Discovery Amendments
(on-demand, registration required)
December 1, 2015, 12:00 - 1:00 pm CentralGeorge Socha (Co-Founder, EDRM)
Craig Ball (Attorney / E-Discovery Blogger, Ball in Your Court Blog)
Hon. Xavier Rodriguez (District Judge, Western District of Texas)
Actiance E-Discovery Day webinar, A Closer Look at Social Media eDiscovery
(registration required)
December 1, 2015, 11:30 am - 12:30 pm CentralJim Shook (Director of eDiscovery and Compliance Practice, EMC)
Bill Tolson (Director of Product Marketing, Actiance)
Exterro E-Discovery Day webinar, 2015 E-Discovery Case Law: Sanction Cases You Need to Know
(on-demand, registration required)
December 1, 2015, 10:30 - 11:30 am CentralHon. Joy Conti (Chief District Judge, Western District of Pennsylvania)
Gareth Evans (Co-Chair E-Discovery Practice Group, Gibson Dunn)
Bob Rohlf (General Counsel, Exterro)
ABA webinar, The December 1, 2015 Amendments to the Federal Rules of Civil Procedure
(registration & payment required)
November 23, 2015, 12:00 - 1:00 pm CentralDavid G. Campbell (U.S. District Court Judge, District of Arizona)
John G. Koetl (U.S. District Court Judge, Southern District of New York)
Paul W. Grimm (U.S. District Court Judge, District of Maryland)
EDRM webinar, Proportionality and the New Rules, sponsored by LexisNexis
(on-demand, registration required)
Recorded October 27, 2015John Barkett (Shook, Hardy & Bacon, LLP)
George Socha (EDRM)
Tom Gelbmann (EDRM)
R.01
R.04
R.16
R.26
R.30
R.31
R.33
R.34
R.37
R.84
EDRM webinar, Relativity Fest 2015 Judicial Panel
(on-demand, registration required)
October 12, 2015Judge Nora Barry Fischer
Judge Andrew Peck
Judge Xavier Rodriguez
Judge David Waxse
David Horrigan (moderator)
[/su_tab]\r\n[/su_tabs]

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