The draft Amendments to the Federal Rules of Civil Procedure are up for public comment. The proposed amendments include some major retooling to provisions governing discovery. As just one example, current rule 37(e) reads as follows:
(e) Failure to Provide Electronically Stored Information. 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.
This “safe harbor” provision is concise, and intended to provide a shield against spoliation sanctions. It isn’t used very much, and is pretty limited in scope. The proposed new 37(e) reads as follows:
(e) Failure to Preserve Discoverable Information.
(1) Curative measures; sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may: (A) permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney’s fees, caused by the failure; and (B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction, but only if the court finds that the party’s actions: (i) caused substantial prejudice in the litigation and were willful or in bad faith; or (ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.
(2) Factors to be considered in assessing a party’s conduct. The court should consider all relevant factors in determining whether a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, and whether the failure was willful or in bad faith. The factors include: (A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable;(B) the reasonableness of the party’s efforts to preserve the information; (C) whether the party received a request to preserve information, whether the request was clear and reasonable, and whether the person who made it and the party consulted in good faith about the scope of preservation; (D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and(E) whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.
As you can see, this is a pretty massive rework of the existing rule, and provides some pretty specific guidance for adjudicating spoliation issues. And it doesn’t end with 37(e)- just a few additional changes include revising the scope of discovery in 26(b)(1) to revolve around proportionality, reducing the number of depositions presumptively allowed from 10 to 5, reducing the presumptive time limit for depositions from 7 to 6 hours, requiring objections to discovery requests to be made with specificity, and reducing the number of permitted interrogatories from 25 to 15. The proposed revisions are worth reading in full.