If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a partv failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery, the court:
Minn. R. Civ. P. 37.05
Rule 37.05is a new rule; it is identical to Fed. R. Civ. P. 37(f), adopted in 2006. It provides some protection against the automatic imposition of sanctions that might otherwise be required under the rules. This rule applies only to discovery of electronically stored information, and prevents the imposition of sanctions for spoliation of evidence where the loss of information arises from the routine operation of a computer system. The good-faith part of this test is important and is not met if a party fails to take appropriate steps to preserve data once a duty to preserve arises.
Advisory Committee Comment-2018 Amendments
Rule 37.05 is amended to redefine the sanctions available fisr thefijilure to preserve electronically stored information (“ESI”). The amendment follows closely the amendment made to Fed. R. Civ. P. 37(e) in 2015 and is intended to create a clearer standard for imposition of sanctions for the failure to preserve electronically stored irtformation. First, the rule looks to ameliorating arty prejudice by allowing discovery to restore or replace the missing information. This might be accomplished by locating alternate copies of the information, or reconstructing backed up copies. In the absence of prejudice, the rule does mt authorize the imposition of sanctions for loss ofUrformation. The rule does not limit other sanctions based on conduct other than failure to preserve ESI If prejudice does occur, the amended rule requires that a remedial sanction be implemented-one that is designed and limited to curing the prejudice. Most often, this would be an order precluding evidence or limiting claims or defenses affected by the missing ESI. If the missing ESI was intentionally destroyed or otherwise made unavailable, the rule allows the more drastic sanctions of imposition of a presumption or either allowing or requiring a jury either to draw an adverse irtference that the information was unfavorable to the party or, in egregious situations, dismiss the action or grant a default judgment.
By its terms, this rule applies only to failure to produce ESI where there is a duty to preserve it. There is no reason, however, that the courts should not, in the exercise of their discretion, follow this rule where there is the failure to preserve other evidence, such as physical evidence or documents in non-electronic form.