One of the most controversial proposed amendments is the new proposed Rule 37(e). This proposed amendment had a singular goal — that is, “to amend the rule to address the overbroad preservation many litigants and potential litigants felt they had to undertake to ensure they would not later face sanctions.” These sentiments were expressed almost entirely by large institutional organizations, mainly corporate defendants. Amendments addressing this concern were proposed at the Duke Conference, and thereafter a mini-conference convened in September 2011 to evaluate various proposals. Additional refinements were made.
The proposed Rule focuses on sanctions as opposed to behavior required for preservation. It does allow a court to conclude that when a party adopts reasonable preservation procedures, that it should not be subject to discovery sanctions, and thus, whether certain preservation practices are reasonable will surely be considered in the sanction calculus. The thrust of the Rule is that a party may only be sanctioned if it acted willfully or in bad faith; thus, the party may not be sanctioned for negligence unless the preserving party’s actions “irreparably deprived” a receiving party of any meaningful opportunity to present or defend against claims in a case.