Public Comment Period Begins for Federal Civil Rules Proposals Addressing Electronic Discovery Issues

On August 10, 2004, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment several proposed amendments to the Federal Civil Rules that specifically address electronic discovery. You may receive a copy of the proposed amendments, and the Committee Notes, in this government .pdf document.

The public now has until February 15, 2005 to comment to the Secretary to the Standing Committee regarding the proposed amendments. In addition, public hearings will be held at various dates prior to the February 15 deadline, allowing comments to be given via public testimony. The earliest the proposed rules may go into effect is December 1, 2006.

The proposed rules mark the culmination of several years of work by the Advisory Committee and its Discovery Subcommittee examining the issue of whether and how the civil rules should be amended to specifically address electronic discovery issues. With the aim of making the rules better able to accommodate the distinctive features of electronic discovery and to provide effective support and guidance for managing discovery practice as it changes with technology, the Advisory Committee considered various alternatives, perspectives, and ideas.

The result are proposed rule amendments which would:

1. amend the definition of discoverable material to specifically include electronically stored information;
2. require early discussion of electronic discovery issues; provide for the form of production of electronically stored information;
3. establish a “two-tier” approach to electronically stored information when defining the scope of discovery, such that electronically stored information that is not reasonably accessible need not be produced unless ordered by the court on a showing of good cause;
4. provide a limited “safe harbor” against sanctions in certain instances of data destruction or loss;
5. incorporate into the rules a procedure for asserting privilege in situations where there has been an inadvertent production of privileged documents;
6. modify the rule regarding subpoenas to conform with the other new proposals regarding discovery, as listed above.

The public comment period is a crucial step in the rulemaking process, intended to encourage the submission of comments, both positive and negative, to ensure that proposed amendments have been considered by a broad segment of the bench and bar. The comments received are studied carefully by the Advisory Committee. After the public comment period, the Advisory Committee will decide whether, and in what form, the proposals will be submitted for the Standing Committee’s approval.

While public comment is always an important step in the rules adoption process, the Advisory Committee has stated that it is particularly critical for these proposals because litigants and lawyers live with the problems raised by electronic discovery in ways that judges do not. We encourage you to consider submitting comments before the February 15, 2005 deadline.

In addition to the proposed text, the Advisory Committee’s memo supplies crucial background and synopsis information discussing the main problems or shortcomings the Committee sought to address with each proposed amendment. While welcoming comment on any and all aspects of the proposed rule amendments, the Advisory Committee has pinpointed several areas in which they are particularly in need of feedback from the public.

Public comment may be submitted as testimony during public hearings, in the form of written comments, or electronically. There are currently three public hearings scheduled regarding these proposed amendments: (1) in San Francisco, California, on January 12, 2005; (2) in Dallas, Texas, on January 28, 2005; and (3) in Washington, D.C., on February 11, 2005.

Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing date. Comments on the proposed rule amendments may also be submitted in writing or sent electronically, and must be received by the Secretary to the Standing Committee no later than February 15, 2005.

Comments may be sent electronically to www.uscourts.gov/rules, or mailed to the Secretary at the following address:
Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544

For more information on the rulemaking process, the proposed rules, and the procedures for submitting comments during this public comment period, please visit www.uscourts.gov/rules.

DISCLAIMER: Preston Gates & Ellis LLP has made this information available to the general public for informational purposes only. It does not constitute legal advice and does not necessarily reflect the opinions or legal positions of our clients, the firm at large, or any particular attorney.