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New eDiscovery Rules on the Horizon?

by Matthew Nelson on August 11th, 2011

The Advisory Committee on Civil Rules recently announced that a “mini-conference” has been scheduled to discuss potential amendments to the Federal Rules of Civil Procedure (FRCP) that could change the way preservation and sanction issues are handled throughout the federal court system today.  The mini-conference is scheduled for September 9th in Dallas, Texas and will be led by the Discovery Subcommittee – a committee appointed by the Advisory Committee.

The mini-conference is important because it is part of a seven step process that could ultimately lead to new rule amendments affecting all litigators and the organizations they represent.  Any new rule proposals developed by the subcommittee at the September mini-conference will be considered by the Advisory Committee this November in Washington D.C.   The proposals, in one form or another, could ultimately become law.  Both Supreme Court and Congressional approval are ultimately required, so don’t expect any rule changes to go into effect before 2013.

A key focus of the meeting is to investigate whether or not new preservation or sanctions amendments are necessary.  Some, including former US Magistrate Judge Ronald Hedges, feel that it’s too early to consider changing the rules on the heels of the 2006 amendments.  If the Subcommittee decides rule amendments are necessary to address current issues, then the question becomes what rule changes should be made.  Given the controversy surrounding the preservation of electronically stored information (ESI) and an increasing number of eDiscovery-related sanctions, the discussion is likely to create plenty of healthy debate about when the duty to preserve evidence should be triggered and when sanctions are warranted.

In the words of the Subcommittee, “anxiety bordering on anguish” has resulted from uncertainty related to the beginning, scope and duration of the duty to preserve evidence and the concomitant risk of sanctions for spoliation.  In other words, organizations routinely exposed to the possibility of sanctions are crying out for language that clarifies when the duty to preserve ESI is triggered, what must be preserved, and when the duty expires.  One challenge the Subcommittee faces if they decide to propose rule changes, is figuring out how to address these cries for more specific guidelines without sacrificing fairness.

For example, some may favor a rule amendment stating that the duty to preserve evidence is triggered only after a complaint has been served.  Although this bright line rule provides certainty in terms of when the duty to preserve evidence is triggered, it could certainly lead to unfair results where bad actors simply delete damaging evidence as soon as they anticipate being served.  This approach would also likely lead to a race to the courthouse and more lawsuits in an already heavily burdened court system, since filing a complaint would be required to trigger preservation requirements for opponents.

The inherent conflict between the desire for bright line rules and the need for flexibility in a fact-driven profession is likely to test the mettle of the Subcommittee in September.  To help frame the discussion, attendees have been asked to consider a number of questions related to the nature and scope of the problem, technology related issues, and possible solutions.  A complete list of attendees and the questions they have been asked to consider are contained in the Advisory Committee’s June 29, 2011 memorandum.  Some of the questions below provide a glimpse into the complexity of the issues to be discussed:

To what extent are you finding that preservation of ESI is a problem in your organization or practice?

Has technology helped you reduce review costs?  How?

What implications will cloud computing have for civil litigation?

How would a rule help reduce some of the costs you are incurring?

Although no formal rule amendments have been proposed, the mini-conference will consider three possible approaches crafted in April of this year.  Stay tuned for my next blog post discussing the differences between these proposals and what it means if they are adopted.

5 Responses to “New eDiscovery Rules on the Horizon?”

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