Local Rule LR Civ P 37.01: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

LR Civ P 37.01. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.

(a) 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 it, and it cannot be restored or replaced through additional discovery, the Court:

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

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

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

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

(iii) dismiss the action or enter a default judgment.

(b) Sanctions: Counsel and parties are subject to sanctions for the types of failures and lack of preparation specified in Fed. R. Civ. P. 16(f) regarding pretrial conferences and orders. Counsel and parties are also subject to the payment of reasonable expenses, including attorney's fees, as provided in Fed. R. Civ. P. 37(f), for failure to participate in good faith in the development and submission of a proposed discovery plan as required by Fed. R. Civ. P. 26(f) and LR Civ. P. 16.01(b) and (c).