The most recent amendments to the Federal Rules of Civil Procedure, which went into effect in December 2010, contained plenty of material relevant to e-discovery. However, rules concerning the preservation and spoliation of ESI were notably absent, which meant that it was up to the courts to fill this void with their own discovery rules.

Both the U.S. District Court for the Eastern District of Texas and the United States District Court for the District of Delaware addressed the issue of preservation in their Model Order and Revised Default Standard (respectively). The Eastern District stated that cell phones, PDAs, and voicemails were exempt from preservation. Delaware stated that the normal preservation policies that each party had in place would be sufficient unless the party requesting information objected, and followed the Eastern District’s lead in deciding which types of information did not have to be preserved. The Supreme Court of Florida did not address preservation in their proposed amendments to the Florida Rules of Civil Procedure.

The amendments to the Federal Rules of Civil Procedure addressing preservation and spoliation – proposed by a Special Committee on Discovery and Case Management in Federal Litigation formed by the New York State Bar – would be made to Rules 26 and 37. Under the proposed addition to Rule 26, “Duty to Disclose; General Provisions Governing Discovery,” preservation requirements would be triggered either when a non-party is subpoenaed or when a person reasonably expects to become a party to an action. Preservation duties would conclude when involvement ceases.

Once a person is aware of their duties to preserve, they must consider the importance of the information, the amount in controversy, and the burden and expense of preservation and act accordingly. The proposed amendments also emphasize that ESI shall be preserved in a state as close as possible to the original and that accessibility shall not be significantly impeded by preservation.

The proposed amendments to Federal Rules of Civil Procedure represent an important step towards clarity when it comes to e-discovery and ESI, although it is almost certain that additional changes will be suggested at a later date.