The Advisory Committee on Civil Rules recently approved amendments to the Federal Rules of Civil Procedure addressing, among other things, eDiscovery. Although some of the Advisory Committee’s proposed revisions lessen the impact of the rule changes proposed by the Duke Conference and Discovery Subcommittee, the amendments by and large continue to garner widespread support, as they should have a significant limiting effect on the scope of discovery generally and eDiscovery in particular.

The Advisory Committee approved the revisions to Rule 1 proposed by the Subcommittee, which provide that the parties have an affirmative duty to administer the Rules “to secure the just, speedy and inexpensive determination of every action.” The Committee Notes to Rule 1 include language that the Rule’s goals are consistent with and dependent upon cooperation among the parties. Some commenters argued against formal codification of a duty to cooperate on the ground that cooperation is already a first principle of the discovery process. Moreover, a vague duty to cooperate could arguably lead to attempts to obtain sanctions for failure to do so, adding another layer of dispute to every facet of the civil litigation process.

In a move especially welcomed by the defense bar, the Advisory Committee also approved two proposed changes to Rule 26 designed to reduce overbroad discovery demands. Under the new version of Rule 26(b)(1), discovery would be limited to matters “proportional to the needs of the case.” Although the concept of proportionality is already included in other parts of Rule 26, most commenters believe that enshrining the principle in 26(b)(1), which governs the scope of discovery, will reduce overboard discovery demands. The new version of Rule 26(b)(1) also removes language that had been frequently misinterpreted to mean that discovery need only be “reasonably calculated to lead to the discovery of admissible evidence.” The new version of Rule 26(b)(1) clarifies that discovery must be “relevant” to the claims or defenses of the parties.

Perhaps most significantly, the Advisory Committee presented and approved a new unpublished version of Rule 37(e). The proposed revisions to this Rule—governing sanctions for failure to preserve electronic information—had been the focus of substantial public comment. In a surprise move, the Advisory Committee announced on the first day of its recent hearings that it would issue a new streamlined Rule 37(e) for discussion and vote the following day. The newly revised Rule sets forth guidelines for sanctions where a “party failed to preserve electronically stored information that should have been preserved in anticipation of litigation.” In such an instance, and where a party demonstrates prejudice, the court may order sanctions “no greater than necessary to cure the loss of information.”

The revised Rule 37(e) further states that more draconian sanctions, such as a default judgment and an adverse inference, may only be ordered “upon a finding that the party acted with an intent to deprive the other party of the information’s use in litigation.” The revised language notably removes a previously proposed requirement that a party act willfully or in bad faith before such a sanction could be awarded. Although concerns remain that the Advisory Committee “watered down” Rule 37(e) too much, the proposed Rules continue to win substantial support.

It is still too soon to tell whether these proposed rule changes will ultimately govern civil practice—the Committee on Rules of Practice and Procedure, the Judicial Conference of the United States, and the U.S. Supreme Court must approve the proposals. Even so, most analysts believe that the substantial public comment period makes it unlikely that the proposals will undergo significant changes.

Attorneys in Ballard Spahr’s E-Discovery and Data Management Group work with clients to identify, analyze, and deliver information in civil, regulatory, and criminal matters. For more information, please contact Philip N. Yannella at 215.864.8180 or, Jason A. Leckerman at 215.864.8266 or



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