The Federal Advisory Committee on Rules of Civil Procedure met on March 22 and 23, 2012, in Ann Arbor, Mich., to consider, among many other issues, the proposed preservation amendments to the Federal Rules of Civil Procedure, a process which began at the May 10-11, 2010, "Duke Conference." Additionally, the Advisory Committee may consider whether it wishes to explore a rule imposing certain limitations on ESI discovery scope. (The meeting agenda and materials can be found here and here.) There are significant roadblocks to progress on these FRCP amendments. Assuming that these obstacles are overcome, however, the proposed amendments would not likely come into effect before December 2015.
The Advisory Committee's Discovery Subcommittee was charged with managing the potential preservation amendments to the FRCP. The Discovery Subcommittee has decided to focus its efforts on developing a uniform spoliation sanctions rule, rather than a more extensive preservation rule. The subcommittee chair, Judge Paul Grimm, previewed this approach with the attendees of the November 2011 Georgetown Advanced E-Discovery Institute. See, "Georgetown Panel Focuses on Discovery Rules," Law Technology News, Nov. 21, 2011.
The Discovery Subcommittee has prepared two alternative sanctions draft rules. The first is proposed Rule 37(g), "Failure to Preserve Discoverable [Electronically Stored] Information; Remedies." The second is a proposed revision to Rule 37(e) "Failure to Preserve or Provide Electronically Stored Information." The draft rules, draft Advisory Committee notes, 31 footnoted comments, and the reporter's notes total 22 pages.
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By: Mark Michels