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April 15, 2014

Next Stop for Proposed FRCP Amendments

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Bowman and Brooke's Discovery Coordination and eDiscovery practice group reports on the latest development regarding proposed amendments to the Federal Rules of Civil Procedure (FRCP). 

The Advisory Committee on Civil Rules approved a revised version of proposed amendments on Friday, April 11, 2014. The substance of many of the proposed amendments remains unchanged since we alerted clients that they had been submitted for comment in August 2013. The proportionality requirement and the removal of the troublesome and misused phrase "reasonably calculated to lead to the discovery of admissible evidence" from the scope of discoverable materials remain.  However, the proposed changes to presumptive discovery limits have been dropped, and the controversial proposed Rule 37 amendments (discussed in our January 14, 2014, article) have been substantively changed since first submitted for comment in August 2013. The proposed Rule 37(e) now provides in pertinent part:

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.

If a party failed to preserve 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 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.

Counsel may note that the Court need not find prejudice to employ the sanctions in section 37(e)(2). However, our assessment is that the current version of the proposed Rule is a measurable improvement over the prior version.

Despite these changes, the Advisory Committee has indicated its belief that the public received notice of the relevant issues, such that re-publication is not necessary. The current version of the amended FRCPs will now proceed to the Committee on Rules of Practice and Procedure, which will meet on May 29, 2014, to consider the current draft of the proposed amendments.

We will continue to report on the progress of the proposed amendments to the FRCP. The amendments would become effective December 1, 2015, if approved by the Committee on Rules of Practice and Procedure, the Judicial Committee, and the United States Supreme Court (provided Congress does not take action to defer, modify or reject them). Contact the undersigned or any of the members of the Bowman and Brooke Discovery Coordination and eDiscovery Practice group if you have any questions about the proposed amendments.

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