On April 10 and 11, the Advisory Committee on Civil Rules met in Portland, Ore., to review proposed amendments to the Federal Rules of Civil Procedure and make key final decisions. Of particular significance was the work around Rule 37(e), also known as the “safe harbor” provision.
As the Discovery Subcommittee Report on Rule 37(e) (p. 369) stated, the two goals of the Subcommittee’s work were to establish greater uniformity in the ways in which federal courts respond to the loss of electronically stored information (ESI) and to relieve the pressures that lead to massive and costly over-preservation.
Also in the report, the Subcommittee discussed the matter of curative measures (p. 385) and stated that the new rule provides clearer guidance for their imposition. Furthermore, that the new rule clarified that severe measures like adverse-inference instructions, dismissal or default are available only if the court finds the information was lost with the intent to deprive another party of the information’s use in the action.
According to a first-person account from the two-day meeting, unexpectedly on day one, Advisory Committee Chair Judge David G. Campbell announced that discussion and a subsequent vote on Rule 37(e) would be moved to the next day in order to meet again and revise the amendment prior to a vote. As noted in this account, the controversial Rule has already gone through significant changes as a result of public comment and criticism during the public comment period.
On April 11, a revised version of Rule 37(e) was presented, discussed and unanimously approved by the Advisory Committee. The latest version reads as follows:
(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If 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.
Next up for all the FRCP amendments are a May vote by the Standing Committee, followed by consideration by the Supreme Court and finally, the U.S. Congress. If all goes well, the amendments could be implemented by 2015.