Rule Amendments Update: Advisory Committee Approves Proposed Changes, But Not Before Rewriting Rule 37(e)

Like many, we’ve been following closely the process to amend the Federal Rules of Civil Procedure. (See our previous blog posts from May 6, 2013 and February 10, 2014.) Last month, the Advisory Committee on Rules of Civil Procedure took the next step in that process by approving the proposed amendments and submitting them to the Standing Committee on Rules of Practice and Procedure for its review and possible approval (the Agenda Book from the Advisory Committee’s April 10-11, 2014, meeting is available here). But before doing so, the Advisory Committee took the particularly noteworthy step of completely rewriting the proposed amendment to Rule 37(e).

The rewriting of the Rule 37(e) amendment was prompted by the nearly 2,500 comments that the Advisory Committee received during the public comment period that was open from August 2013 to February 2014. Among other changes, the revised version of the amendment to Rule 37(e) explicitly limits the application of the rule to electronically stored information. The revised version also removes any reference to “sanctions” or Rule 37(b)(2)(A) as a source of sanctions, and it reinstates some of the inherent judicial discretion that had been removed by the previous version.

The text of the proposed amendment to Rule 37(e) now reads as follows:

(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 it, and it cannot be restored or replaced through additional discovery, the court may:

  1. upon finding prejudice to another party from loss of the information, 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:

(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 Standing Committee will meet on May 29-30, 2014, to consider the amendments (the Agenda Book for the Standing Committee’s meeting is available here. If approved, the proposed changes will then go to the Judicial Conference, which is scheduled to meet in September 2014. If the Judicial Conference approves the proposed amendments, they will then be submitted to the U.S. Supreme Court. If the Supreme Court adopts the changes before May 1, 2015, they would become effective on December 1, 2015, unless Congress intervenes and enacts legislation.

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