Advisory Committee Approves Proposed Amendments to Civil Rules, Next Stop Standing Committee!

Apr 15 2014

As was reported on this blog just last week, the Advisory Committee on Civil Rules met on April 10th and 11th to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment. On the first day of meetings, the Advisory Committee unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34, including the Duke Subcommittee’s recommendations as outlined in the Advisory Committee’s Agenda Book (discussed in a prior post and available here). As approved by the Advisory Committee, the amendments would, among other things, narrow the scope of discovery by eliminating discovery of information relevant to the “subject matter involved in the action”; move considerations of proportionality into Rule 26(b)(1); shorten the time for service under Rule 4(m); add the preservation of ESI and ER 502 agreements to the permitted contents of a Rule 16 scheduling order; modify the requirements for responses to Rule 34 requests for production; and allow early delivery of Rule 34 requests prior to parties’ Rule 26(f) conference. The proposed amendments as adopted will now be submitted to the Committee on Rules of Practice and Procedure (“the Standing Committee”) for its review and potential approval.

On the second day of meetings, the Advisory Committee took up proposed amendments to Rule 37(e). As was previously discussed on this blog, the Discovery Subcommittee to the Advisory Committee had recommended significant changes to the version of the proposed rule which was published for public comment. The proposed amendments to Rule 37(e) underwent further revision, however, even as the meeting was ongoing, and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee on Friday morning. That proposed rule (which is limited to the loss of ESI), the full text of which is provided below, was ultimately approved by the Advisory Committee without opposition and will also be submitted to the Standing Committee for its review and potential approval. Although republication of proposed amendments to Rule 37(e) was considered, it was determined to be unnecessary in this instance.

Briefly, it is important to also point out that the proposed amendments to the rules include proposed Committee Notes, intended to clarify the intent of the proposed amendments and provide guidance in their implementation.

The proposed amendments as approved by the Advisory Committee will be considered at the next meeting of the Standing Committee on May 29-30, 2014.

The text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s Agenda Book for last week’s meetings, here.

The full text of Proposed Rule 37(e) as approved is available below:

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

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

(2) 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