Coming to a Close: Reflections on the Proposed Amendments to F.R.C.P. 37 Debate at the 2013 Georgetown Advanced eDiscovery Institute as the End of the Public Comment Period Nears

The proposed amendments to F.R.C.P. 37(e) would establish a single standard by which courts will assess culpability and issue sanctions for failure to preserve electronically stored information (“ESI”). Our previous blog post discusses the rule. The proposed amendments to F.R.C.P. 37(e) were recommended for adoption in 2010 and, on June 3, 2013, they were approved for public comment (as part of a package of amendments to several federal rules) by the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure. On August 15, 2013, the Committee officially published for public comment the full slate of proposed rule changes. Unsurprisingly, the proposed amendments have generated considerable feedback from the legal community and, indeed, the discussion took center stage at the 2013 Georgetown Advanced eDiscovery Institute on November 22, 2013. With little more than a week to go before the comment period expires, and with, to date, more than 600 comments already posted addressing various aspects of the proposed rule amendments, we thought it might be a good time to reflect upon the discussion at Georgetown, especially for those considering weighing in before the end of the public comment period.

At the Institute, two lawyers assumed the rolls of members of the plaintiff and defense bar respectively in a staged debate that showcased the divergent viewpoints regarding the proposal. The plaintiff’s side argued a universal rule will have little effect upon a company’s document retention and litigation hold practices. Rather, companies will continue to develop strong, defensible retention policies that can be supported in court regardless of the universal standard. The defense bar argued the rule will enable companies to better develop document retention policies without fear of court sanction. However, the disjunctive terms “willful or in bad faith”– the proposed culpability standards for the failure to preserve ESI — as currently drafted provide too much room for judicial interpretation and, therefore, warrant some clarification.

Several judges who were in attendance weighed in on the debate. Notably, the Hon. Shira Scheindlin, U.S. District Court Judge for the Southern District of New York, agreed that “willful” is ambiguous, but stressed that the term should be interpreted broadly. Consistent with her well-known prior opinions on this issue, Judge Scheindlin stated that “willful” should include reckless behavior. Southern District of New York, U.S. Magistrate Judge Frank Maas agreed that the rules must be clearer. In any event, notwithstanding the various competing arguments raised, it was the general consensus that a universal rule is appropriate to promote national uniformity.

So, where do you stand? Remember, the public comment period closes February 15, 2014, so if you want to contribute to this important discussion, you should do so now. Even if you elect not to comment, stay tuned — we will update this blog as new developments surface.