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They Heard You Loud and Clear: Public Comment Drives Revisions to Federal Rules Amendments

Proposed Amendments to Civil Rules

In two prior blog posts, I examined a number of proposed amendments to the Federal Rules of Civil Procedure developed by the Duke Conference Subcommittee and the Discovery Subcommittee of the Advisory Committee on Civil Rules. Now, those amendments appear to be changing — thanks to more than 2,000 written comments submitted. In response to this substantial input, both subcommittees have recommended major changes to the proposed amendments.

The Duke Conference Amendments

One of the changes to the package of amendments originally put forward by the Duke Conference subcommittee is the withdrawal of proposals to reduce the presumptive number of depositions and interrogatories, limit the number of requests for admission, and shorten the length of depositions to six hours. Also, although the subcommittee still proposes to reduce the time for service under Rule 4(m), the suggested time is now 90 days, rather than 60 as previously proposed.

Most significantly, the subcommittee has not changed its recommendation to modify the definition of the scope of discovery in Rule 26(b)(1) to expressly incorporate the concept of proportionality. However, there are several suggested edits to the proposed text of the rule and the commentary. One proposed revision of the text is to flip the order of the first two proportionality factors, placing “the importance of the issues at stake” before “the amount in controversy.” According to the subcommittee, the intent of this rearrangement is to “add prominence to the importance of the issues at stake, avoiding any possible implication that the amount in controversy is the first and therefore most important concern.” Also, another proportionality factor is added: “the parties’ relative access to relevant information.” Apparently this additional factor will address the commonly expressed concern that “the frequently asymmetric distribution of information means that discovery often will impose greater burdens on one party than on another.”

Proposed Amendments to Rule 37(e)

The Discovery subcommittee has completely overhauled its proposed amendments to Rule 37(e), which were aimed at creating a consistent, nationwide rule for the imposition of sanctions for the spoliation of evidence.

First, the new rule would apply only to the loss of electronically stored information, not paper or other tangible evidence. According to the subcommittee, “the law of spoliation for non-ESI is well developed and long-standing,” and therefore a rule change is not necessary.

Second, the new proposal would eliminate the prior version’s creation of a two-tiered structure for addressing spoliation, with “curative measures” and “sanctions” available for varying degrees of culpability. Instead, the rule would focus on (1) whether the lost information caused prejudice to the requesting party, and (2) whether the information was destroyed intentionally. All references to “sanctions” would be removed. The new proposed rule contains four parts:

  • The new Rule 37(e)(1) deals with the loss of ESI without any need to consider whether the loss caused prejudice. This subsection permits the court to “order measures no greater than necessary to cure the loss of information.”
  • The proposed Rule 37(e)(2) addresses the situation where the loss of ESI has caused prejudice to another party. In that instance, the court may “order measures no greater than necessary to cure the prejudice. “
  • The new Rule 37(e)(3) would apply when ESI is lost and a party “acted with the intent to deprive another party of the information’s use in the litigation.” In that case, the court may “presume that the lost information was unfavorable to the party,” “instruct the jury that it may or must presume the information was unfavorable to the party,” or “dismiss the action or enter a default judgment.”
  • The final subsection of the new proposed rule, (e)(4) contains a list of nonexclusive factors courts may consider in applying Rule 37(e), including the reasonableness and proportionality of the preservation efforts taken.

According to the subcommittee, even with these significant revisions, the “basic framework” of the proposed new Rule 37(e) remains the same. The changes are intended to maximize the discretion afforded trial court judges in addressing spoliation, and focus on the measures that can be taken to cure the loss of information.

So what happens next? The Advisory Committee on Civil Rules meets this week to consider the revisions to the proposed amendments. (For those of you interested in the full details, a copy of the Agenda Book for this meeting, which includes all of the recommended changes to the proposed amendments, is available here.) Following this meeting, the Advisory Committee must decide whether to seek additional public comment or to submit the revisions to the Standing Committee for consideration. So once again, stay tuned as we track — and analyze — the latest developments.

Maureen O'Neill