You have heard this one before. Changes to the Federal Rules of Civil Procedure are in the works that could alleviate the e-discovery burdens of organizations. Greeting this news with skepticism would probably be justified. After all, many feel that the last set of amendments failed to meet the hype of streamlining the discovery process to make litigation costs more reasonable. Others, while not declaring the revised rules a failure, nonetheless believe that the amendments have been doomed by the lack of adherence among counsel and the courts. Regardless of the differing perspectives, there seems to be agreement on both sides that the rules have spawned more collateral disputes than ever before about the preservation and collection of electronically stored information (ESI).
What is different this time is that the latest set of proposed amendments could offer a genuine opportunity for companies to slash the costs of ESI preservation and collection. Chief among these changes would be a revised Rule 37(e). The current iteration of this rule is designed to protect organizations from court sanctions when the programmed operation of their computer systems automatically destroys ESI. Nevertheless, the rule has largely proved ineffective as a national standard because it does not apply to pre-litigation information destruction activities. As a result, courts often bypass the rule’s protections to punish companies who negligently, though not nefariously, eliminate documents before a lawsuit was filed.
Opening or Closing Loopholes?
One of the areas of concern for the Civil Rules Advisory Committee that remains an open question is protecting organizations from sanctions when their information was destroyed by a so-called “Act of God.” To address this issue, the committee inserted the “negligent or grossly negligent” conditioning language into the “irreparably deprived” provision. This way, a party whose information was inadvertently destroyed in connection with a “Superstorm Sandy” type of event would not be sanctioned given its lack of culpability.