Though it likely got lost in the early summer joy of the weather finally warming, or in the rapt anticipation of the latest batch of Supreme Court decisions, the Judicial Conference’s Committee on Rules of Practice and Procedure passed a package of proposed changes to the Federal Electronic Discovery Rules.  The changes are fairly far reaching and could greatly impact the way that federal courts tackle the complex issues surrounding Electronic discovery.

The proposed changes include a new form of Rule 37(e),  changes to Rule 1,  and a rewriting of Rule 26(b)(1).  The change to Rule 26 will likely be the most controversial and far reaching, as the committee made it very clear that any discovery of electronically stored data must be both relevant and proportional to the needs of the given case.  The Committee moved the list of proportionality factors into the definition of the scope of discovery in Rule 26.

Another major change the Committee made was to explicitly acknowledge the responsibility of both parties to the litigation, as well as the court for securing the goals of Rule 1 (the “just, speedy, and inexpensive determination of every action”).

Finally, the Committee made several changes to the penalty for failure to preserve electronic data and spoliation.  These changes will hopefully begin to put an end to the numerous, and often serious episodes of litigants destroying evidence that was stored electronically.  At the very least, it is a step in the right direction towards holding parties accountable for their actions, or failures to act to preserve necessary data.

This proposed rule change comes in the wake of a widespread realization that the current Federal Rules are not adequate to properly and fairly address the issues posed by electronic data storage. Beginning several years ago, litigators and judges have worked toward producing sweeping changes in the ways that courts and parties to litigation handle the potential mountains of data and discoverable information that can now be preserved electronically.

At this point the proposed rules are still just that, proposals. The Senate must still approve them before they become part of the Federal Rules of Evidence.  However, there seems to be little reason why these new rules will not pass and become part of litigation.  It may actually establish a set of concrete expectations, rather than merely judge-made law. These printed rules for will enhance the litigation process, helping move away from relying on the whims of a small subset of the federal judiciary for guidance.

–Mike Sellner

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