REVISED (Post-Public Comment) RECOMMENDATION OF DISCOVERY SUBCOMMITTEE

 Rule 37. 

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.

If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) 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.

[(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A)               the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B)               the reasonableness of the party’s efforts to preserve the information;

(C)               the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D)               whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.]

See Current 37 (e) Failure to Provide Electronically Stored Information below:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Tomorrow morning (to me) and afternoon to the east coast, I will be talking with Tom Allman about the changes to the Proposed eDiscovery Amendments.  The Agenda Book is 580 pages.  Of single spaced courier font type.  Tom’s distilled it down to about 40, and our slide deck is under 20.

After the webcast, I will post here with some additional links, including to Tom’s paper.  He spent the better part of last weekend revising it due to the total rewrite of what many consider the lynchpin of the new amendments, Rule 37(e).

I’ve made myself a few notes outside of the 37(e) sanctions/curative measures discussion where we will spend most of our time.

Proportionality:

1.  Proportionality moves to 26(b)(1) from 26(b)(2)(C)(iii)
the parties’ relative access to relevant information added as a factor

cost moved to number 2, after importance of the issues

2.   26(c)(2) includes “the allocation of expenses” in a protective order for production

Discovery Plans:

On the one hand, the changes remind about the “get out of jail free” card for inadvertent production afforded by FRE 502 protection, and on the other hand, explicitly call out preservation as an item to be included in the scheduling order.

3.    26(f)(3)(C) includes any issues about disclosure, or discovery, or preservation of electronically stored information,
including the form or forms in which it should be produced;

4.     26(f)(3)(D) whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502

Time Limits:

5.   All new limits are out, except for the soul crushing 7 hour deposition reduction to 6 hours.

A portion of present Rule 26(b)(1) is omitted from the proposed revision. After allowing discovery of any matter relevant to any party’s claim or defense, the present rule adds: “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case. Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.

The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.

The Amendments to the Federal Rules of Civil Procedure took an unexpected turn late last week.

Tom Allman

The process around amending the eDiscovery Rules in the Federal Rules of Civil Procedure since the Duke Conference has been transparent, deliberative and only slightly heated.  Many of you have submitted written comments or testified live.  The Civil Rules Advisory Committee has just issued their Agenda Book for the meeting in Portland April 10-11, 2014.

Some of the surprises:  a total rewrite of the proposed amendment FRCP Rule 37(e), formerly on sanction limitation and preservation, and removal of presumptive limits.  The limitations on scope survived intact.

Tom Allman and I will be discussing the “amended amendments” with a view toward what is likely to happen in Portland (revise, republish, approve) and the impacts on the eDiscovery community and the people and organizations we serve.

The complementary webcast, Tom Allman on Federal Rules Amendments (FRCP) in the Final Stages, is sponsored by ZyLAB (my employer) and hosted by ACEDS.

Date:  March 25, 2014 at 1PM EST.  Register here.