Proposed Amendments to the Federal Rules of Civil Procedure Clear Another Hurdle

June 12, 2014 conduentblogs

Earlier this year, we provided an update on the proposed amendments to the Federal Rules of Civil Procedure. Subsequently, the Advisory Committee on Civil Rules submitted a slate of modified proposed amendments to the Standing Committee, which approved the amendments in its meeting held in late May.

Based on its findings from public hearings and comments, the Advisory Committee significantly revised Rule 37(e) governing the imposition of sanctions. First, the Committee narrowed the application of the rule to electronically stored information only. The Committee also eschewed the use of the term “sanctions” to avoid “overtones of professional responsibility and of censure”; instead, it reframed the rule as curative, allowing courts to take “measures no greater than necessary” to remedy the harm caused by the failure to preserve. Further watering down the rule, the revisions curtailed judges’ discretion to impose adverse inferences by eliminating list of factors to consider in applying the rule and nixed the requirement that the complaining party must demonstrate that the loss of evidence affected its ability to present a claim or defense.

The revised Rule 37(e) reads as follows:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

(1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Presuming Rule 37 is adopted in its current form, it should create a more uniform standard for imposing adverse inference sanctions.

Next, the revisions will undergo consideration by the Judicial Conference in September. If approved, they will be sent to the Supreme Court, which must complete its review by April 2015.

Chris O’Brien is senior vice president at Conduent. He can be reached at

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