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New FRCP Amendments – Clarification or Adding Confusion

The preservation of electronically stored information (ESI) is one of the biggest sources of confusion in eDiscovery.  This area of eDiscovery has been governed almost entirely by common law, as the Federal Rules of Civil Procedure (FRCP) do not explicitly address the many questions inherent in the duty to preserve, such as trigger, scope, duration, etc.  It has also been argued that the FRCP gives insufficient guidance regarding the imposition of sanctions for violations of this duty.  That’s why, just a short five years since the last one, there has been a push by many in the legal community to amend the FRCP.

Consider this complex and ambiguous definition of the duty to preserve from the Supreme Court of Texas:

A party must preserve “what it knows, or reasonably should know is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, [or] is the subject of pending discovery sanctions.”  Trevino v. Ortega, 969 S.W.2nd 950 (Tex. 1998).

During the federal rulemaking process, the Advisory Committee on Civil Rules holds conferences around the country for public comment. These conferences are for the committee to consider competing opinions on issues of concern that will need to be addressed by the rulemaking initiative. The dialogue began in earnest in May 2010 at the Duke Civil Litigation Conference which brought together more than 180 federal judges, practitioners, and academics to discuss issues of access, fairness, cost, and delay in the civil litigation process.  The movement to amend the rules gained steam at the Discovery Subcommittee meeting in Dallas in September and took up the bulk of the discussions at the Sedona Conference’s Annual Meeting in October of this year.

Even ahead of the meeting, the Sedona Conference issued a survey to its Electronic Document Retention and Production members seeking input on questions around the difficulties around the duty to preserve. 95 percent of respondents indicated that preservation issues have become increasingly significant in civil litigation over the past five years. Additionally, respondents indicated that significant preservation issues arose in 91 percent of $1 million plus matters “sometimes,” “often” or “always,” and 80 percent of cases from the respondents needed court intervention to resolve the preservation issue.

While it is clear that preservation has become a more complex and risky process, there is no consensus that this pain is directly due to the FRCP.  Amending the rules to specify what constitutes a trigger and dictate an across the board scope and duration can be fraught with issues and will only add complexity and ambiguity.  It also has the strong potential to create more reasons for litigation over eDiscovery.

That’s why if there are to be any amendments to the FRCP to ease some of the eDiscovery burdens litigants are facing it should be an amendment to Rule 37 regarding associated sanctions.  One participant explained it best:

The problem isn’t in the triggers as much as it is in the execution.  That is, clients and lawyers are worried that their reasoned judgment will be second guessed and sanctioned by the court later. Protecting reasonable preservation will encourage a reasoned and documented preservation process that would provide a “safe harbor” from spoliation claims and sanctions to good-faith litigants. http://1.usa.gov/uOY6d5

The subcommittee apparently agreed.  The Advisory Committee met on November 7-8th in Washington D.C. to continue the preservation rule discussions and consider “the Subcommittee’s present thinking…that the rulemaking focus should be limited to sanctions regulation.”   If the full Committee also agrees, the Subcommittee will try between the November and March meetings to develop a specific proposal.

Stay tuned!

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