Rule 37 in Action – Case Dismissed

As stated in my previous blog, “A Rule 37 Refresher – As Applied to a Ransomware Attack,” Federal Rule of Civil Procedure 37(e) (“Rule 37”) was completely rewritten in 2015 to provide more clarity and guidance to the sanction process under the Rule.

In Jones v. Riot Hospitality Group, LLC, the Ninth Circuit makes very clear that, when the court faces a sanctions analysis based upon evidence that there is data that should have been preserved, that was lost because of failure to preserve, and that can’t be replicated, then the court has two additional decisions to make: (1) was there prejudice to another party from the loss or (2) was there an intent to deprive another party of the information. If the former, the court may only impose measures “no greater than necessary” to cure the prejudice. If the latter, the court may take a variety of extreme…