The December 1, 2015 amendments to Federal Rule of Civil Procedure (FRCP) 37(e) set a uniform federal standard for imposing sanctions for spoliation of electronically stored information (ESI) evidence. The rule change was intended to stop reliance on the court's inherent authority to impose sanctions (see CAT3, LLC v. Black Lineage, Inc., , at *6 (S.D.N.Y. Jan. 12, 2016) (quoting Advisory Committee note to the 2015 amendment)). However, decisions applying the amended rule in the four months since its effective date show that a court may impose sanctions for spoliation of evidence under its inherent authority even if the rule does not apply.

FRCP 37(e) sets out four prerequisites before a court may impose sanctions for spoliation of ESI:

(FRCP 37(e).)

If all of the prerequisites are not present, FRCP 37(e) does not apply.

In CAT3, one of the first decisions to apply amended Rule 37(e), FRCP 37(e) arguably did not apply because the ESI at issue was not lost (, at *6). However, the court expressly held that it could impose sanctions for spoliation of ESI, even in circumstances where the amended rule did not apply (CAT3, , at *6). The court held that, under its inherent power, it may redress conduct that "abuses the judicial process," including the bad faith spoliation of evidence (, at *6-*7). In Internmatch, Inc. v. Nxtbigthing, LLC, the court also held that it may sanction a party for despoiling evidence under both its inherent power and amended Rule 37(e) (, at *4 n.6 (N.D. Cal. Feb. 8, 2016)). However, because the spoliator's conduct met the requirements to impose sanctions under both the rule and the court's inherent authority, the court did not decide how the amended rule may affect existing case law (Internmatch, , at *4 n.6).

The court also continues to have inherent authority to sanction spoliation of tangible evidence. FRCP 37(e) applies only to ESI and not to tangible evidence. This is important because even after the rule's amendment, courts continue to hold that they may impose sanctions for spoliation of tangible evidence under their inherent authority (see, for example, Hernandez v. VanVeen, , at *1 (D. Nev. Mar. 28, 2016) (court has inherent authority to impose sanctions for spoliation of tangible evidence); Best Payphones, Inc. v. City of New York, , at *3 (E.D.N.Y. Feb. 26, 2016) (noting that there are separate analyses governing the spoliation of tangible evidence and ESI); Granados v. Traffic Bar and Rest., Inc., , at *5 n.6 (S.D.N.Y. Dec. 30, 2015) (court may impose sanctions for spoliation of tangible evidence under its inherent power, but amended Rule 37(e) applies to spoliation of ESI); see also Living Color Enters., Inc. v. New Era Aquaculture, Ltd., , at *4 n.2 (S.D. Fla. Mar. 22, 2016) (questioning whether, in view of amended FRCP 37(e), courts should rely on inherent authority to impose sanctions for spoliation of tangible evidence)).

Litigants should be aware that under its inherent authority, a court may impose sanctions for the spoliation of evidence even if amended Rule 37(e) does not apply. For more information and cases discussing Rule 37, see Practice Note, E-Discovery Case Tracker: Sanctions and Spoliation Sanctions by US Circuit Court Chart.