In response to extensive public comments, the Advisory Committee on Civil Rules approved for adoption a new, simplified Rule 37(e):
(e) FAILURE TO 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 the information, and the information cannot be restored or replaced through additional discovery, the court may:
(1) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;
(2) Only upon a finding that the party acted with the intent to deprive another party of the information's use in the litigation,
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
The Advisory Committee also adopted the Duke Conference Package of proposed amendments to Federal Rules 1, 4, 16, 26, 30, 31, 33, and 34 and to withdraw presumptive numerical limit proposals to Federal Rules 30, 31, and 33.
See the full text of the revised proposed amendments to the Federal Rules of Civil Procedure and agenda for hearing in Portland, OR., available here.