eDiscovery Daily Blog
Rule 37(e) Amended Again – eDiscovery Trends
Last month, we discussed significant changes made to Rule 37(e), which had been hotly debated (as reflected in our recent thought leader series) and was the source of many of the 2,354 public comments filed regarding the recent proposed rules changes. Earlier this month (on April 10th and 11th), the Advisory Committee on Civil Rules met to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment and further changes were made to Rule 37(e).
Discussion regarding Rule 37(e) occurred on the second day of the two-day meeting and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee (also known as the “Duke Subcommittee”), which was ultimately approved by that committee without opposition and will now be submitted to the Standing Committee for its review and potential approval. Here is the new, much simpler, proposed rule:
(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.
During the meetings, the Advisory Committee also unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34. The proposed amendments will be considered at the next meeting of the Standing Committee on May 29-30.
The full report of the meetings including the text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s 580 page(!) Agenda Book here. Discussion of Rule 37(e) starts on page 369 – you can click on Tab 3 in the Agenda to jump straight to that section.
Click here, here, here and here for previous posts on this blog regarding the proposed rules changes.
So, what do you think? Are the latest changes an improvement? Will there be more changes? Please share any comments you might have or if you’d like to know more about a particular topic.
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