The Advisory Committee on Civil rules has voted to adopt a revised version of rule 37(e) that would state, “(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 the 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 (C) dismiss the action or enter a default judgment.”
The committee also voted unanimously to withdraw presumptive limit proposals in rules 30, 31 and 33; they would have reduced the allowable numbers and time limits for interrogatories and depositions. The Standing Committee on rules of Practice and Procedure will review the proposed changes at the end of May, and they will be subject to further review by the Judicial Conference, U.S. Supreme Court and Congress. if no changes are made, the amendments will take effect December 1, 2015.