Over the last couple years, a number of proposed amendments to the Federal Rules of Civil Procedure have been working their way through the rulemaking process. In two prior posts here, we explained these potential revisions, which were drafted by subcommittees of the Advisory Committee on Civil Rules. The various amendments proposed by the Duke Conference Subcommittee have three primary goals: (1) advancing early, hands-on case management by judges, (2) promoting proportionality in discovery, and (3) improving cooperation among litigants. The Discovery Subcommittee proposes to amend Rule 37(e) to create a consistent, nationwide rule for the imposition of sanctions for the spoliation of evidence.
Last month, I covered some changes to the proposed amendments. The drafters made these revisions in response to more than 2,000 written comments submitted during the public comment period.
Here’s the latest on the status of the amendments:
The Duke Conference Amendments to the Federal Rules of Civil Procedure
The Advisory Committee met in mid-April to consider the revisions to the proposed amendments. At that meeting it voted unanimously to adopt the revised Duke Conference Package proposals. From here, the rules will go to the Standing Committee for its consideration at the end of this month.
Proposed Amendments to Rule 37(e) of the Federal Rules of Civil Procedure
After the public comment period, the Discovery subcommittee completely overhauled its proposed amendments to Rule 37(e). In an interesting procedural twist, on the night before the Advisory Committee meeting in April, the proposed rule was changed yet again, making it even more streamlined.
Even with the latest changes, the new rule would apply only to the loss of electronically stored information, not paper or other tangible evidence.
The most recent proposal would eliminate the prior version’s creation of a two-tiered structure for addressing spoliation, which made “curative measures” and “sanctions” available for varying degrees of culpability. Instead, the rule will focus on: (1) whether the lost information caused prejudice to the requesting party, and if so, allow the court to order measures to cure the prejudice; and (2) whether the information was destroyed intentionally, in which case the court could 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.
All references to “sanctions” are removed. And the newest version of the federal rule eliminates the list of factors courts may consider in applying Rule 37(e), which formerly was included in the proposed amendment.
The Committee voted to adopt the revised rule drafted the previous evening. The Committee will amend the Rule’s advisory note as necessary, and then forward the proposal to the Standing Committee for consideration in its late May meeting.
While the process has been anything but swift, it does seem like greater clarity is in the cards as rulemakers have now settled on language that will advance to the next step. We’ll continue to post updates about the Federal Rules of Civil Procedure here.