The process of amending the Federal Rules of Civil Procedure is entering its last phases before promulgation. Please see our previous article outlining the proposed amendments and the amendment process in detail. The six-month public comment period that ended on Feb. 18, 2014, spawned a heated debate and many public comments focused in large part on the proposed amendments to Rule 37(e), which included a new federal standard for sanctions resulting from spoliation. As many anticipated, after further consideration and in response to the many public comments, in April 2014 the Standing Committee on Rules of Practice and Procedure revised proposed Rule 37(e) before submitting it to the Judicial Conference of the United States with a recommendation for approval.
The revised proposed Rule 37(e) is a significant change from the initial proposal that was submitted in August 2013. The original objective in revising Rule 37(e) was to replace the differing treatment of preservation obligations and sanctions in federal circuits throughout the country with a uniform federal standard. Thus, the initial proposed amendment essentially rewrote the entirety of Rule 37(e). The proposed amendment was drafted to apply to losses of all types of discoverable information, created a uniform willfulness standard for sanctioning a litigant for spoliation, and listed a set of factors that a court was to consider when deciding whether to award sanctions for the loss of discoverable information.