How Safe is the “Safe Harbor” in Federal Rule of Civil Procedure 37(f)?
The 2006 amendments to the Federal Rules of Civil Procedure contain a provision commonly referred to as the “safe harbor”. Specifically, Rule 37(f) 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.” Since its inception, much debate has ensued over the sufficiency of the safe harbor and the amount of protection afforded when parties destroy documents. Prior to the new 37(f) provision, when documents subject to a preservation obligation were destroyed, parties were at risk for spoliation sanctions no matter the circumstances surrounding the destruction. Common sanctions issued for spoliation include an adverse jury instruction, exclusion of evidence at trial, monetary awards and, in extreme cases, judgment for the prejudiced party. However, under the new Rule 37(f), a court is prohibited
