Prior months’ Lit Alerts have summarized proposed changes to Fed. R. Civ. P. Rule 37(e), relating to electronic discovery, as well as to the presumptive limits on depositions, interrogatories, and document requests. After receiving over 2,250 comments on the proposals, The Advisory Committee on Civil Rules (subscription required) has abandoned the proposed changes to presumptive limits and has significantly streamlined the proposed new Rule 37. The goals of the Rule 37 changes are to address the issue of overpreservation, as well as to clarify the scope of the duty to preserve and the level of culpability required to issue sanctions. The new language, which is not yet published, authorizes remedial action by the court (curative measures or sanctions) only if a party or its attorney fails to take reasonable steps to preserve. Additionally, a finding of culpability is a necessary predicate for sanctions.
The next step is for the Standing Committee on the Rules of Practice and Procedure to review the current draft rules. The Standing Committee would then refer them to the U.S. Judicial Conference, which would ultimately submit them to the Supreme Court for final review.