The so-called “Duke Subcommittee” today finalized and voted on its version of proposed amendments to the Federal Rules of Civil Procedure. These amendments include those we’ve blogged about before, making alterations to the scope of discovery, the proportionality requirement, and with respect to ediscovery the availability of sanctions. Except for the sanctions amendments (Rule 37(e)), the other rules changes are substantively the same as those released by the Subcommittee last month in its “Agenda Book.” You can review those changes here. Most importantly, from our perspective, the final proposed amendments excise the much abused “reasonably calculated to lead to the discovery of admissible evidence” language from Rule 26(b)(1) and replace it with proportionality considerations. As amended, scope of discovery would become:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
The only substantive changes that the Duke Subcommittee has made from its March, 2014 proposal concern the sanctions available under Fed. R. Civ. P. 37(e) for loss of electronic information. As of today, amended Rule 37(e) now reads:
(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.
We understand that the Committee voted unanimously: (1) to adopt the amendments, and (2) that the latest revisions do not require republication of the amendments and/or a new comment period.
While hardly perfect, these changes to Rule 37(a) are a welcome step in the right direction. They would appear to preclude, for example, substantive sanctions (presumptions; adverse inference instructions) in a situation similar to ex post facto sanctions in the Actos litigation we described last week, where a litigation hold remained from prior litigation, but “the litigation” (as provided in proposed Rule 27(e)(2) had not yet been filed. Logically, it seems impossible for a party to have “intent to deprive” anybody of anything for “use” in litigation that does not exist.