The proposed amendments are roughly 18 months from taking effect, and we’ve added them to the eDiscovery Assistant app so you can prepare for them in advance of their December 1, 2015 scheduled effective date. (There are a couple more administrative hurdles, but it seems pretty clear that this will be the new playing field as of that date).
There are some changes that you’ll want to prepare for and consider, and even use now in arguments. (Think sanctions defense for failure to preserve a la Rule 37(e).) You’ll find them in the Rules/Federal Rules section of the app. We’ve added both the final approved language of the rule and the comments, if published. We’ll be adding the full text of the report from the Committee to the Resources section as well.
The new amendments take direct aim at trying to get attorneys to incorporate proportionality, cooperation and cost savings measures into their discovery. The new Rule 37(e) also attempts to dissuade harsh sanctions for mere negligent failure to preserve — a move that is a direct slam against the Zubulake, Pension Committee and Residential Funding decisions and an effort to provide guidance on the split in the circuits on that issue.
The new rule adopts the “reasonableness” standard of Rimkus v. Cammarata, which for eDiscovery afficionados harks us back to the much hyped but completely non-existent battle between Judges Scheindlin and Rosenthal when the two Judges came to opposite conclusions in Pension Committee and Rimkus. (Many tended to gloss over that the two judges were in two different circuits with different common law principles on the issues at hand, but I digress.)
The Committee on Rules of Practice and Procedure approved the recommended changes to FRCP 1, 4, 16, 26, 30, 31, 33, 34, and 37 at their meeting on May 30th. The Committee adopted the recommendations for the Rules that stemmed from the Duke Conference for Rules 1, 4, 16, 26, 30, 31, 33, and 34 with revisions to just two of the new Committee Notes that accompany the changes.
Rule 37(e) was a different story. In response to the original published amendment to Rule 37 that required bad faith to seek sanctions for failure to preserve, the Committee received 2,345 scathing written comments from judges and practitioners across the country challenging the high standard required for sanctions. The Civil Rules Advisory Committee went back to the drawing board and completely rewrote Rule 37(e) at its April Meeting. The new Rule 37(e), which will not be submitted for public comment, reads:
(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 the information, and the information cannot be restored or replaced through additional discovery, the court may:
(1) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;
(2) Only upon a 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.
Tom Allman breaks down the rule in an excellent article on LTN. For practitioners generally, the gist is this: You’ll have to show intent to deceive by the other side if you want harsh sanctions like an adverse inference or default judgment. And that could be as tall a mountain as the ones outside my front door.
Why add the proposed rules to the app now? Because you need to know about them and you need to plan. Lay the ground work by starting on your discovery sooner and more comprehensively than you have been doing. Focus to reduce your eDiscovery costs. Get an ESI Order in place. Talk to the right people.
The checklists and templates in eDiscovery Assistant can help get you started. Dive in.