I could not find a statement of the proposed rules on e-discovery that did not also include hundreds of pages of unrelated proposed changes to bankruptcy and other non-e-discovery rules. For my own benefit, and as a service to the e-discovery community, I created the below version of all of the proposed changes to FRCP that concern e-discovery. The full 354 pages of all of the rule changes can be found here, but I think you will find this much easier to read.
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PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE
(New material is underlined and in blue font; matter to be omitted is lined through and in red font.)
1 Rule 1. Scope and Purpose
2 These rules govern the procedure in all civil actions
3 and proceedings in the United States district courts, except
4 as stated in Rule 81. They should be construed, and
5 administered, and employed by the court and the parties to
6 secure the just, speedy, and inexpensive determination of
7 every action and proceeding.
Committee Note
Rule 1 is amended to emphasize that just as the court
should construe and administer these rules to secure the
just, speedy, and inexpensive determination of every action,
so the parties share the responsibility to employ the rules in
the same way. Most lawyers and parties cooperate to
achieve these ends. But discussions of ways to improve the
administration of civil justice regularly include pleas to
discourage overuse, misuse, and abuse of procedural tools
that increase cost and result in delay. Effective advocacy is
consistent with — and indeed depends upon — cooperative
and proportional use of procedure.
_______________________________/
1 Rule 16. Pretrial Conferences; Scheduling;
2 Management
3 * * * * *
4 (b) Scheduling.
………
(3) Contents of the Order.
25 * * * * *
26 (B) Permitted Contents. The scheduling
27 order may:
28 * * * * *
29 (iii) provide for disclosure, or
30 discovery, or preservation of
31 electronically stored
32 information;
33 (iv) include any agreements the
34 parties reach for asserting
35 claims of privilege or of
36 protection as trial-preparation
37 material after information is
38 produced, including
39 agreements reached under
40 Federal Rule of Evidence
41 502;
42 (v) direct that before moving for
43 an order relating to
44 discovery, the movant must
45 request a conference with the
46 court;†
47 * * * * *
†Present (v) and (vi) would be renumbered.
Committee Note
The provision for consulting at a scheduling
conference by “telephone, mail, or other means” is deleted.
A scheduling conference is more effective if the court and parties
engage in direct simultaneous communication. The
conference may be held in person, by telephone, or by more
sophisticated electronic means.
The time to issue the scheduling order is reduced to
the earlier of 90 days (not 120 days) after any defendant
has been served, or 60 days (not 90 days) after any
defendant has appeared. This change, together with the
shortened time for making service under Rule 4(m), will
reduce delay at the beginning of litigation. At the same
time, a new provision recognizes that the court may find
good cause to extend the time to issue the scheduling order.
In some cases it may be that the parties cannot prepare
adequately for a meaningful Rule 26(f) conference and then
a scheduling conference in the time allowed. Because the
time for the Rule 26(f) conference is geared to the time for
the scheduling conference or order, an order extending the
time for the scheduling conference will also extend the time
for the Rule 26(f) conference. But in most cases it will be
desirable to hold at least a first scheduling conference in the
time set by the rule.
Three items are added to the list of permitted
contents in Rule 16(b)(3)(B).
The order may provide for preservation of
electronically stored information, a topic also added to the
provisions of a discovery plan under Rule 26(f)(3)(C).
Parallel amendments of Rule 37(e) recognize that a duty to
preserve discoverable information may arise before an
action is filed, and may be shaped by prefiling requests to
preserve and responses to them.
The order also may include agreements
incorporated in a court order under Evidence Rule 502
controlling the effects of disclosure of information covered
by attorney-client privilege or work-product protection, a
topic also added to the provisions of a discovery plan under
Rule 26(f)(3)(D).
Finally, the order may direct that before filing a
motion for an order relating to discovery the movant must
request a conference with the court. Many judges who hold
such conferences find them an efficient way to resolve
most discovery disputes without the delay and burdens
attending a formal motion, but the decision whether to
require such conferences is left to the discretion of the
judge in each case.
_______________________________/
1 Rule 26. Duty to Disclose; General Provisions
2 Governing Discovery
3 * * * * *
4 (b) Discovery Scope and Limits.
5 (1) Scope in General. Unless otherwise limited
6 by court order, the scope of discovery is as
7 follows: Parties may obtain discovery
8 regarding any nonprivileged matter that is
9 relevant to any party’s claim or defense and
10 proportional to the needs of the case,
11 considering the amount in controversy, the
12 importance of the issues at stake in the
13 action, the parties’ resources, the importance
14 of the discovery in resolving the issues, and
15 whether the burden or expense of the
16 proposed discovery outweighs its likely
17 benefit. Information within this scope of
18 discovery need not be admissible in
19 evidence to be discoverable. — including
20 the existence, description, nature, custody,
21 condition, and location of any documents or
22 other tangible things and the identity and
23 location of persons who know of any
24 discoverable matter. For good cause, the
25 court may order discovery of any matter
26 relevant to the subject matter involved in the
27 action. Relevant information need not be
28 admissible at the trial if the discovery
29 appears reasonably calculated to lead to the
30 discovery of admissible evidence. All
31 discovery is subject to the limitations
32 imposed by Rule 26(b)(2)(C).
33 (2) Limitations on Frequency and Extent.
34 (A) When Permitted. By order, the court
35 may alter the limits in these rules on
36 the number of depositions, and
37 interrogatories, and requests for
38 admissions, or on the length of
39 depositions under Rule 30. By order
40 or local rule, the court may also limit
41 the number of requests under
42 Rule 36.
43 * * * * *
44 (C) When Required. On motion or on its
45 own, the court must limit the
46 frequency or extent of discovery
47 otherwise allowed by these rules or
48 by local rule if it determines that:
49 * * * * *
50 (iii) the burden or expense of the
51 proposed discovery is outside
52 the scope permitted by
53 Rule 26(b)(1) outweighs its
54 likely benefit, considering the
55 needs of the case, the amount
56 in controversy, the parties’
57 resources, the importance of
58 the issues at stake in the
59 action, and the importance of
60 the discovery in resolving the
61 issues.
62 * * * * *
63 (c) Protective Orders.
64 (1) In General. * * * The court may, for good
65 cause, issue an order to protect a party or
66 person from annoyance, embarrassment,
67 oppression, or undue burden or expense,
68 including one or more of the following:
69 * * * * *
70 (B) specifying terms, including time and
71 place or the allocation of expenses,
72 for the disclosure or discovery;
73 * * * * *
74 (d) Timing and Sequence of Discovery.
75 (1) Timing. A party may not seek discovery
76 from any source before the parties have
77 conferred as required by Rule 26(f), except:
78 (A) in a proceeding exempted from
79 initial disclosure under
80 Rule 26(a)(1)(B),; or
81 (B) when authorized by these rules,
82 including Rule 26(d)(2), by
83 stipulation, or by court order.
84 (2) Early Rule 34 Requests.
85 (A) Time to Deliver. More than 21 days
86 after the summons and complaint are
87 served on a party, a request under
88 Rule 34 may be delivered:
89 (i) to that party by any other
90 party, and
91 (ii) by that party to any plaintiff
92 or to any other party that has
93 been served.
94 (B) When Considered Served. The
95 request is considered as served at the
96 first Rule 26(f) conference.
97 (23) Sequence. Unless, on motion, the parties
98 stipulate or the court orders otherwise for
99 the parties’ and witnesses’ convenience and
100 in the interests of justice:
101 (A) methods of discovery may be used in
102 any sequence; and
103 (B) discovery by one party does not
104 require any other party to delay its
105 discovery.
106 * * * * *
107 (f) Conference of the Parties; Planning for Discovery.
108 * * * * *
109 (3) Discovery Plan. A discovery plan must
110 state the parties’ views and proposals on:
111 * * * * *
112 (C) any issues about disclosure, or
113 discovery, or preservation of
114 electronically stored information,
115 including the form or forms in which
116 it should be produced;
117 (D) any issues about claims of privilege
118 or of protection as trial-preparation
119 materials, including — if the parties
120 agree on a procedure to assert these
121 claims after production — whether
122 to ask the court to include their
123 agreement in an order under Federal
124 Rule of Evidence 502;
125 * * * * *
Committee Note
The scope of discovery is changed in several ways.
Rule 26(b)(1) is revised to limit the scope of discovery to
what is proportional to the needs of the case. The
considerations that bear on proportionality are moved from
present Rule 26(b)(2)(C)(iii). Although the considerations
are familiar, and have measured the court’s duty to limit the
frequency or extent of discovery, the change incorporates
them into the scope of discovery that must be observed by
the parties without court order.
The amendment deletes the former provision
authorizing the court, for good cause, to order discovery of
any matter relevant to the subject matter involved in the
action. Proportional discovery relevant to any party’s claim
or defense suffices. Such discovery may support
amendment of the pleadings to add a new claim or defense
that affects the scope of discovery.
The former provision for discovery of relevant but
inadmissible information that appears reasonably calculated
to lead to the discovery of admissible evidence is also
amended. Discovery of nonprivileged information not
admissible in evidence remains available so long as it is
otherwise within the scope of discovery. Hearsay is a
common illustration. The qualifying phrase — “if the
discovery appears reasonably calculated to lead to the
discovery of admissible evidence” — is omitted. Discovery
of inadmissible information is limited to matter that is
otherwise within the scope of discovery, namely that which
is relevant to a party’s claim or defense and proportional to
the needs of the case. The discovery of inadmissible
evidence should not extend beyond the permissible scope
of discovery simply because it is “reasonably calculated” to
lead to the discovery of admissible evidence.
Rule 26(b)(2)(A) is revised to reflect the addition of
presumptive limits on the number of requests for admission
under Rule 36. The court may alter these limits just as it
may alter the presumptive limits set by Rules 30, 31, and
33.
Rule 26(b)(2)(C)(iii) is amended to reflect the
transfer of the considerations that bear on proportionality to
Rule 26(b)(1). The court still must limit the frequency or
extent of proposed discovery, on motion or on its own, if it
is outside the scope permitted by Rule 26(b)(1).
Rule 26(b)(2)(C) is further amended by deleting the
reference to discovery “otherwise allowed by these rules or
local rule.” Neither these rules nor local rules can
“otherwise allow” discovery that exceeds the scope defined
by Rule 26(b)(1) or that must be limited under
Rule 26(b)(2)(C).
Rule 26(c)(1)(B) is amended to include an express
recognition of protective orders that specify terms
allocating expenses for disclosure or discovery. Authority
to enter such orders is included in the present rule, and
courts are coming to exercise this authority. Explicit
recognition will forestall the temptation some parties may
feel to contest this authority.
Rule 26(d)(1)(B) is amended to allow a party to
deliver Rule 34 requests to another party more than 21 days
after that party has been served even though the parties
have not yet had a required Rule 26(f) conference. Delivery
may be made by any party to the party that has been served,
and by that party to any plaintiff and any other party that
has been served. Delivery does not count as service; the
requests are considered to be served at the first Rule 26(f)
conference. Under Rule 34(b)(2)(A) the time to respond
runs from service. This relaxation of the discovery
moratorium is designed to facilitate focused discussion
during the Rule 26(f) conference. Discussion at the
conference may produce changes in the requests. The
opportunity for advance scrutiny of requests delivered
before the Rule 26(f) conference should not affect a
decision whether to allow additional time to respond.
Former Rule 26(d)(2) is renumbered as (d)(3) and amended
to recognize that the parties may stipulate to case
specific sequences of discovery.
Rule 26(f)(3) is amended in parallel with
Rule 16(b)(3) to add two items to the discovery plan —
issues about preserving electronically stored information
and court orders on agreements to protect against waiver of
privilege or work-product protection under Evidence
Rule 502. Parallel amendments of Rule 37(e) recognize that
a duty to preserve discoverable information may arise
before an action is filed, and may be shaped by prefiling
requests to preserve and responses to them.
_______________________/
1 Rule 34. Producing Documents, Electronically
2 Stored Information, and Tangible Things, or Entering
3 onto Land, for Inspection and Other Purposes
4 * * * * *
5 (b) Procedure.
6 * * * * *
7 (2) Responses and Objections.
8 * * * * *
9 (A) Time to Respond. The party to
10 whom the request is directed must
11 respond in writing within 30 days
12 after being served or — if the request
13 was delivered under Rule 26(d)(2)
14 — within 30 days after the parties’
15 first Rule 26(f) conference. A shorter
16 or longer time may be stipulated to
17 under Rule 29 or be ordered by the
18 court.
19 (B) Responding to Each Item. For each
20 item or category, the response must
21 either state that inspection and
22 related activities will be permitted as
23 requested or state an objection to the
24 request the grounds for objecting to
25 the request with specificity,
26 including the reasons. The
27 responding party may state that it
28 will produce copies of documents or
29 of electronically stored information
30 instead of permitting inspection. The
31 production must then be completed
32 no later than the time for inspection
33 stated in the request or a later
34 reasonable time stated in the
35 response.
36 (C) Objections. An objection must state
37 whether any responsive materials are
38 being withheld on the basis of that
39 objection. An objection to part of a
40 request must specify the part and
41 permit inspection of the rest.
42 * * * * *
Committee Note
Several amendments are made in Rule 34, aimed at
reducing the potential to impose unreasonable burdens by
objections to requests to produce.
Rule 34(b)(2)(A) is amended to fit with new
Rule 26(d)(2). The time to respond to a Rule 34 request
delivered before the parties’ Rule 26(f) conference is 30
days after the first Rule 26(f) conference.
Rule 34(b)(2)(B) is amended to make it clear that
objections to Rule 34 requests must be stated with
specificity. This provision adopts the language of
Rule 33(b)(4), eliminating any doubt that less specific
objections might be suitable under Rule 34.
Rule 34(b)(2)(B) is further amended to reflect the
common practice of producing copies of documents or
electronically stored information rather than simply
permitting inspection. The response to the request must
state that copies will be produced. The production must be
completed either by the time for inspection stated in the
request or by a later reasonable time specifically identified
in the response. When it is necessary to make the
production in stages the response should specify the
beginning and end dates of the production.
Rule 34(b)(2)(C) is amended to provide that an
objection to a Rule 34 request must state whether anything
is being withheld on the basis of the objection. This
amendment should end the confusion that frequently arises
when a producing party states several objections and still
produces information, leaving the requesting party
uncertain whether any relevant and responsive information
has been withheld on the basis of the objections. An
objection that states the limits that have controlled the
search for responsive and relevant materials qualifies as a
statement that the materials have been “withheld.”
Examples would be a statement that the search was limited
to materials created during a defined period, or maintained
by identified sources.
_____________________________/
1 Rule 37. Failure to Make Disclosures or to Cooperate
2 in Discovery; Sanctions
3 (a) Motion for an Order Compelling Disclosure or
4 Discovery.
5 * * * * *
6 (2) Specific Motions.
7 * * * * *
8 (B) To Compel a Discovery Response. A
9 party seeking discovery may move
10 for an order compelling an answer,
11 designation, production, or
12 inspection. This motion may be
13 made if:
14 * * * * *
15 (iv) a party fails to produce
16 documents or fails to respond
17 that inspection will be
18 permitted — or fails to
19 permit inspection — as
20 requested under Rule 34.
21 * * * * *
Committee Note
Rule 37(a)(3)(B)(iv) is amended to reflect the
common practice of producing copies of documents or
electronically stored information rather than simply
permitting inspection. This change brings item (iv) into line
with paragraph (B), which provides a motion for an order
compelling “production, or inspection.”
________________________________/
1 Rule 37. Failure to Make Disclosures or to Cooperate
2 in Discovery; Sanctions
3 * * * * *
4 (e) Failure to Provide Electronically Stored
5 Information. Absent exceptional circumstances, a
6 court may not impose sanctions under these rules on
7 a party for failing to provide electronically stored
8 information lost as a result of the routine, good-faith
9 operation of an electronic information system.
10 (e) Failure to Preserve Discoverable Information.
11 (1) Curative measures; sanctions. If a party
12 failed to preserve discoverable information
13 that should have been preserved in the
14 anticipation or conduct of litigation, the
15 court may:
16 (A) permit additional discovery, order
17 curative measures, or order the party
18 to pay the reasonable expenses,
19 including attorney’s fees, caused by
20 the failure; and
21 (B) impose any sanction listed in Rule
22 37(b)(2)(A) or give an adverse-
23 inference jury instruction, but only if
24 the court finds that the party’s
25 actions:
26 (i) caused substantial prejudice
27 in the litigation and were
28 willful or in bad faith; or
29 (ii) irreparably deprived a party
30 of any meaningful
31 opportunity to present or
32 defend against the claims in
33 the litigation.
34 (2) Factors to be considered in assessing a
35 party’s conduct. The court should consider
36 all relevant factors in determining whether a
37 party failed to preserve discoverable
38 information that should have been preserved
39 in the anticipation or conduct of litigation,
40 and whether the failure was willful or in bad
41 faith. The factors include:
42 (A) the extent to which the party was on
43 notice that litigation was likely and
44 that the information would be
45 discoverable;
46 (B) the reasonableness of the party’s
47 efforts to preserve the information;
48 (C) whether the party received a request
49 to preserve information, whether the
50 request was clear and reasonable,
51 and whether the person who made it
52 and the party consulted in good faith
53 about the scope of preservation;
54 (D) the proportionality of the
55 preservation efforts to any
56 anticipated or ongoing litigation; and
57 (E) whether the party timely sought the
58 court’s guidance on any unresolved
59 disputes about preserving
60 discoverable information.
61 * * * * *
Committee Note
In 2006, Rule 37(e) was added to provide protection
against sanctions for loss of electronically stored
information under certain limited circumstances, but
preservation problems have nonetheless increased. The
Committee has been repeatedly informed of growing
concern about the increasing burden of preserving
information for litigation, particularly with regard to
electronically stored information. Many litigants and
prospective litigants have emphasized their uncertainty
about the obligation to preserve information, particularly
before litigation has actually begun. The remarkable
growth in the amount of information that might be
preserved has heightened these concerns. Significant
divergences among federal courts across the country have
meant that potential parties cannot determine what
preservation standards they will have to satisfy to avoid
sanctions. Extremely expensive overpreservation may
seem necessary due to the risk that very serious sanctions
could be imposed even for merely negligent, inadvertent
failure to preserve some information later sought in
discovery.
This amendment to Rule 37(e) addresses these
concerns by adopting a uniform set of guidelines for federal
courts, and applying them to all discoverable information,
not just electronically stored information. The amended
rule is not limited, as is the current rule, to information lost
due to “the routine, good-faith operation of an electronic
information system.” The amended rule is designed to
ensure that potential litigants who make reasonable efforts
to satisfy their preservation responsibilities may do so with
confidence that they will not be subjected to serious
sanctions should information be lost despite those efforts.
It does not provide “bright line” preservation directives
because bright lines seem unsuited to a set of problems that
is intensely context-specific. Instead, the rule focuses on a
variety of considerations that the court should weigh in
calibrating its response to the loss of information.
Amended Rule 37(e) supersedes the current rule
because it provides protection for any conduct that would
be protected under the current rule. The current rule
provides: “Absent exceptional circumstances, a court may
not impose sanctions under these rules on a party for failing
to provide electronically stored information lost as a result
of the routine, good-faith operation of an electronic
information system.” The routine good faith operation of
an electronic information system should be respected under
the amended rule. As under the current rule, the prospect
of litigation may call for altering that routine operation.
And the prohibition of sanctions in the amended rule means
that any loss of data that would be insulated against
sanctions under the current rule would also be protected
under the amended rule.
Amended Rule 37(e) applies to loss of discoverable
information “that should have been preserved in the
anticipation or conduct of litigation.” This preservation
obligation was not created by Rule 37(e), but has been
recognized by many court decisions. It may in some
instances be triggered or clarified by a court order in the
case. Rule 37(e)(2) identifies many of the factors that
should be considered in determining, in the circumstances
of a particular case, when a duty to preserve arose and what
information should have been preserved.
Except in very rare cases in which a party’s actions
cause the loss of information that irreparably deprives
another party of any meaningful opportunity to present or
defend against the claims in the litigation, sanctions for loss
of discoverable information may only be imposed on a
finding of willfulness or bad faith, combined with
substantial prejudice.
The amended rule therefore forecloses reliance on
inherent authority or state law to impose litigation sanctions
in the absence of the findings required under Rule
37(e)(1)(B). But the rule does not affect the validity of an
independent tort claim for relief for spoliation if created by
the applicable law. The law of some states authorizes a tort
claim for spoliation. The cognizability of such a claim in
federal court is governed by the applicable substantive law,
not Rule 37(e).
An amendment to Rule 26(f)(3) directs the parties to
address preservation issues in their discovery plan, and an
amendment to Rule 16(b)(3) recognizes that the court’s
scheduling order may address preservation. These
amendments may prompt early attention to matters also
addressed by Rule 37(e).
Subdivision (e)(1)(A). When the court concludes that
a party failed to preserve information that should have been
preserved in the anticipation or conduct of litigation, it may
adopt a variety of measures that are not sanctions. One is
to permit additional discovery that would not have been
allowed had the party preserved information as it should
have. For example, discovery might be ordered under
Rule 26(b)(2)(B) from sources of electronically stored
information that are not reasonably accessible. More
generally, the fact that a party has failed to preserve
information may justify discovery that otherwise would be
precluded under the proportionality analysis of
Rule 26(b)(1) and (2)(C).
In addition to, or instead of, ordering further
discovery, the court may order curative measures, such as
requiring the party that failed to preserve information to
restore or obtain the lost information, or to develop
substitute information that the court would not have
ordered the party to create but for the failure to preserve.
The court may also require the party that failed to preserve
information to pay another party’s reasonable expenses,
including attorney fees, caused by the failure to preserve.
Such expenses might include, for example, discovery
efforts caused by the failure to preserve information.
Additional curative measures might include permitting
introduction at trial of evidence about the loss of
information or allowing argument to the jury about the
possible significance of lost information.
Subdivision (e)(1)(B)(i). This subdivision authorizes
imposition of the sanctions listed in Rule 37(b)(2)(A) for
willful or bad-faith failure to preserve information, whether
or not there was a court order requiring such preservation.
Rule 37(e)(1)(B)(i) is designed to provide a uniform
standard in federal court for sanctions for failure to
preserve. It rejects decisions that have authorized the
imposition of sanctions — as opposed to measures
authorized by Rule 37(e)(1)(A) — for negligence or gross
negligence. It borrows the term “sanctions” from Rule
37(b)(2), and does not attempt to prescribe whether such
measures would be so regarded for other purposes, such as
an attorney’s professional responsibility.
This subdivision protects a party that has made
reasonable preservation decisions in light of the factors
identified in Rule 37(e)(2), which emphasize both
reasonableness and proportionality. Despite reasonable
efforts to preserve, some discoverable information may be
lost. Although loss of information may affect other
decisions about discovery, such as those under
Rule 26(b)(1), (b)(2)(B), and (b)(2)(C), sanctions may be
imposed only for willful or bad faith actions, unless the
exceptional circumstances described in Rule 37(e)(1)(B)(ii)
are shown.
The threshold under Rule 37(e)(1)(B)(i) is that the
court find that lost information should have been preserved;
if so, the court may impose sanctions only if it can make
two further findings. First, the court must find that the loss
of information caused substantial prejudice in the litigation.
Because digital data often duplicate other data, substitute
evidence is often available. Although it is impossible to
demonstrate with certainty what lost information would
prove, the party seeking sanctions must show that it has
been substantially prejudiced by the loss. Among other
things, the court may consider the measures identified in
Rule 37(e)(1)(A) in making this determination; if these
measures can sufficiently reduce the prejudice, sanctions
would be inappropriate even when the court finds
willfulness or bad faith. Rule 37(e)(1)(B)(i) authorizes
imposition of Rule 37(b)(2) sanctions in the expectation
that the court will employ the least severe sanction needed
to repair the prejudice resulting from loss of the
information.
Second, it must be established that the party that failed
to preserve did so willfully or in bad faith. This
determination should be made with reference to the factors
identified in Rule 37(e)(2).
Subdivision (e)(1)(B)(ii). This subdivision permits
the court to impose sanctions in narrowly limited
circumstances without making a finding of either bad faith
or willfulness. The need to show bad faith or willfulness is
excused only by finding an impact more severe than the
substantial prejudice required to support sanctions under
Rule 37(e)(1)(B)(i). It still must be shown that a party
failed to preserve discoverable information that should
have been preserved. In addition, it must be shown that the
party’s actions irreparably deprived a party of any
meaningful opportunity to present or defend against the
claims in the litigation.
The first step under this subdivision is to examine
carefully the apparent importance of the lost information.
Particularly with electronically stored information,
alternative sources may often exist. The next step is to
explore the possibility that curative measures under
subdivision (e)(1)(A) can reduce the adverse impact. If a
party loses readily accessible electronically stored
information, for example, the court may direct the party to
attempt to retrieve the information by alternative means. If
such measures are not possible or fail to restore important
information, the court must determine whether the loss has
irreparably deprived a party of any meaningful opportunity
to present or defend against the claims in the litigation.
The “irreparably deprived” test is more demanding
than the “substantial prejudice” that permits sanctions
under Rule 37(e)(1)(B)(i) on a showing of bad faith or
willfulness. Examples might include cases in which the
alleged injury-causing instrumentality has been lost. A
plaintiff’s failure to preserve an automobile claimed to have
defects that caused injury without affording the defendant
manufacturer an opportunity to inspect the damaged
vehicle may be an example. Such a situation led to
affirmance of dismissal, as not an abuse of discretion, in
Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir.
2001). Or a party may lose the only evidence of a critically
important event. But even such losses may not irreparably
deprive another party of any meaningful opportunity to
litigate. Remaining sources of evidence and the opportunity
to challenge the evidence presented by the party who lost
discoverable information that should have been preserved,
along with possible presentation of evidence and argument
about the significance of the lost information, should often
afford a meaningful opportunity to litigate.
The requirement that a party be irreparably deprived
of any meaningful opportunity to present or defend against
the claims in the litigation is further narrowed by looking to
all the claims in the litigation. Lost information may appear
critical to litigating a particular claim or defense, but
sanctions should not be imposed — or should be limited to
the affected claims or defenses — if those claims or
defenses are not central to the litigation.
A special situation arises when discoverable
information is lost because of events outside a party’s
control. A party may take the steps that should have been
taken to preserve the information, but lose it to such
unforeseeable circumstances as flood, earthquake, fire, or
malicious computer attacks. Curative measures may be
appropriate in such circumstances — this is information
that should have been preserved — but sanctions are not.
The loss is not caused by “the party’s actions” as required
by (e)(1)(B).
Subdivision (e)(2). These factors guide the court
when asked to adopt measures under Rule 37(e)(1)(A) due
to loss of information or to impose sanctions under Rule
37(e)(1)(B). The listing of factors is not exclusive; other
considerations may bear on these decisions, such as
whether the information not retained reasonably appeared
to be cumulative with materials that were retained. With
regard to all these matters, the court’s focus should be on
the reasonableness of the parties’ conduct.
The first factor is the extent to which the party was on
notice that litigation was likely and that the information lost
would be discoverable in that litigation. A variety of
events may alert a party to the prospect of litigation. But
often these events provide only limited information about
that prospective litigation, so that the scope of discoverable
information may remain uncertain.
The second factor focuses on what the party did to
preserve information after the prospect of litigation arose.
The party’s issuance of a litigation hold is often important
on this point. But it is only one consideration, and no
specific feature of the litigation hold — for example, a
written rather than an oral hold notice — is dispositive.
Instead, the scope and content of the party’s overall
preservation efforts should be scrutinized. One focus
would be on the extent to which a party should appreciate
that certain types of information might be discoverable in
the litigation, and also what it knew, or should have known,
about the likelihood of losing information if it did not take
steps to preserve. The court should be sensitive to the
party’s sophistication with regard to litigation in evaluating
preservation efforts; some litigants, particularly individual
litigants, may be less familiar with preservation obligations
than other litigants who have considerable experience in
litigation. Although the rule focuses on the common law
obligation to preserve in the anticipation or conduct of
litigation, courts may sometimes consider whether there
was an independent requirement that the lost information
be preserved. The court should be sensitive, however, to
the fact that such independent preservation requirements
may be addressed to a wide variety of concerns unrelated to
the current litigation. The fact that some information was
lost does not itself prove that the efforts to preserve were
not reasonable.
The third factor looks to whether the party received a
request to preserve information. Although such a request
may bring home the need to preserve information, this
factor is not meant to compel compliance with all such
demands. To the contrary, reasonableness and good faith
may not require any special preservation efforts despite the
request. In addition, the proportionality concern means that
a party need not honor an unreasonably broad preservation
demand, but instead should make its own determination
about what is appropriate preservation in light of what it
knows about the litigation. The request itself, or
communication with the person who made the request, may
provide insights about what information should be
preserved. One important matter may be whether the
person making the preservation request is willing to engage
in good faith consultation about the scope of the desired
preservation.
The fourth factor emphasizes a central concern —
proportionality. The focus should be on the information
needs of the litigation at hand. That may be only a single
case, or multiple cases. Rule 26(b)(1) is amended to make
proportionality a central factor in determining the scope of
discovery. Rule 37(e)(2)(D) explains that this calculation
should be made with regard to “any anticipated or ongoing
litigation.” Prospective litigants who call for preservation
efforts by others (the third factor) should keep those
proportionality principles in mind.
Making a proportionality determination often depends
in part on specifics about various types of information
involved, and the costs of various forms of preservation.
The court should be sensitive to party resources; aggressive
preservation efforts can be extremely costly, and parties
(including governmental parties) may have limited
resources to devote to those efforts. A party may act
reasonably by choosing the least costly form of information
preservation, if it is substantially as effective as more costly
forms. It is important that counsel become familiar with
their clients’ information systems and digital data —
including social media — to address these issues. A party
urging that preservation requests are disproportionate may
need to provide specifics about these matters in order to
enable meaningful discussion of the appropriate
preservation regime.
Finally, the fifth factor looks to whether the party
alleged to have failed to preserve as required sought
guidance from the court if agreement could not be reached
with the other parties. Until litigation commences,
reference to the court may not be possible. In any event,
this is not meant to encourage premature resort to the court;
amendments to Rule 26(f)(3) direct the parties to address
preservation in their discovery plan, and amendments to
Rule 16(c)(3) invite provisions on this subject in the
scheduling order. Ordinarily the parties’ arrangements are
to be preferred to those imposed by the court. But if the
parties cannot reach agreement, they should not forgo
available opportunities to obtain prompt resolution of the
differences from the court.
Ralph, thanks for posting a clean version!
Thank you so much Ralph. Jen from Pittsburgh
Thank you for this, Professor Losey.
[…] Proposed Amendments to the Rules: the “Easy to Read” e-Discovery Only Version | e-Discovery Team… […]
Thanks, Ralph. This will be a big help!
[…] For an abbreviated version of the proposed rules and committee notes, which have been condensed from 354 pages, visit this post by e-Discovery Team. […]
[…] For an abbreviated version of the proposed rules and committee notes, which have been condensed from 354 pages, visit this post by e-Discovery Team. […]