Advisory Commission Comments to Rules 37.01-37.06

Advisory Commission Comments

This Rule prescribes penalties for violation of pretrial procedures contained in Rules 26 through 36. While the penalties provided for herein probably lie within the inherent power of a trial court, it was felt desirable to suggest guidelines for appropriate action under the various circumstances mentioned in the Rule.

37.02: Deponents are added to the list of persons who can be sanctioned. Presumably the usual sanction would be contempt under Rule 37.02(D). Compare F.R.C.P. 37 (b)(1). [1984.]

37.05: This amendment corresponds to new Rule 26.06. [1984.]

Advisory Commission Comment [2006]

Rule 37.03(1) expressly provides sanctions for failure to supplement or amend discovery responses. The usual sanction will be exclusion of evidence at trial. Courts already have this power under the common law. Lyle v. Exxon, 746 S.W.2d 694 (Tenn. 1988), and Ammons v. Bonilla, 886 S.W.2d 239 (Tenn. Ct. App. 1994).

Advisory Commission Comment [2009]

Rule 37.06(1) is a new rule adopted from Guideline 5 (“The Scope of Electronic Discovery”), Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Justices (2006). It focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Under Rule 37.01(2), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.

Rule 37.06(2) applies only to information lost due to the “routine operation of an electronic information system” – the ways in which such systems are generally designed, programmed, and implemented to meet the party’s technical and business needs. The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.

Rule 37.06(2) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37.06(2) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

The protection provided by Rule 37.06 applies only to sanctions “under these rules.” It does not affect other sources of authority to impose sanctions or rules of professional responsibility.

This rule restricts the imposition of “sanctions.” It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.

Advisory Commission Comment [2010]

The title of Rule 37.03 is expanded to conform to the language in the rule.

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