The Advisory Committee on Civil Rules met late this March in Ann Arbor to discuss amendments to the Federal Rules of Civil Procedure. Included on the agenda was the report of the Discovery Subcommittee, which has been pondering the issue of sanctions and preservation since their mini-conference in September 2011. Since that time, the subcommittee has been engaged in intense discussion concerning the question of whether or not to directly address preservation in the rules or to address it indirectly (through sanctions). The latest update to the rules, which went into effect in December 2010, included changes to Rule 26 that clarified the triggering of preservation requirements but not the details of said requirements.
Currently, the FRCP do not address preservation requirements or sanctions at all. So what has this void been filled with? The Model Order from the Eastern District of Texas, introduced in February of this year, and the Revised Default Standard from Delaware, introduced in December 2011, both go into detail about what types of ESI are exempt from preservation. However, the Florida Rules of Civil Procedure follow the lead of the Federal Rules of Civil Procedure by sidestepping the issue. If the agenda from the meeting of the Advisory Committee is any indication, the time has come for sanctions and preservation to be tackled, which will doubtless be a relief for attorneys who are currently practicing without firm guidelines.
The Discovery Subcommittee decided that if they directly addressed preservation requirements, it would actually impose greater burdens on parties who are producing ESI because it would limit flexibility. Since the types, volume, and complexity of ESI often vary from case to case, the subcommittee instead chose to focus on preservation through the lens of sanctions.
The gist of the draft of Rule 37(g) is that if parties fail to preserve discoverable information that reasonably should be preserved during or in anticipation of litigation, and this failure was in bad faith, willful, and caused irreparable prejudice, then sanctions – including extra discovery, curative measures, and fees – will be imposed. In order to determine if the failure to preserve was in bad faith, the court needs to consider all relevant factors. Some of these factors include how much notice the party had that the information was needed for litigation, the party’s “resources and sophistication in matters of litigation,” and whether or not the party sought guidance from the court to resolve disputes over preservation. If adopted, this draft would indicate valuable guidelines, but some big questions still remain.
First, what does “discoverable information that should be reasonably preserved” really mean? In the article When Data Disappears, published in August 7, 2011 by the New York Times, it is noted that “…we generate over 1.8 zettabytes of digital information a year. By some accounts, that’s nearly 30 million times the amount of information contained in all the books written.” The scope of discoverable information has and is expanding at a rate that the human mind cannot even comprehend. Especially with the rising prevalence of cloud computing, storing massive volumes of data is not a significant challenge. Given this reality, is it really reasonable to say that everything relevant needs to be preserved?
Second, should any amendments to Rule 37(g) focus specifically on ESI, or on all discoverable information? As written, the draft does not treat ESI differently from any other type of information, although there are arguments to be made that a distinction is necessary. The primary argument in favor of making Rule 37(g) all about ESI is that it was technological developments like PDAs, social media, and the “bring your own device” movement that provoked the current discussion of preservation and sanctions in the first place. However, it is difficult to articulate precisely what makes ESI different from any other type of information that could be used as evidence. It will be interesting to see which position is taken once the amendments are in place.
In conclusion, the proposed amendments to the Federal Rules of Civil Procedure would give structure to the currently chaotic jumble of rules concerning preservation and sanctions. The draft of Rule 37(g) raises several fundamental questions about the nature of discoverable information and how we deal with it. Any changes would not go into effect until December 2015, so there is plenty of time for further developments to arise.