Proposed FRCP Amendments

Posted In Federal Rules, News

Henry Kelston of the Legal Intelligencer provides a useful summary of the amendments to the FRCP that were recently proposed by the United States Courts’ Advisory Committee on Civil Rules.

The rules would seek to create uniformity on a variety of issues including scope and proportionality of discovery, sanctions for failure to preserve discoverable information and limits on written discovery and depositions.

Kelston states that the proposed amendment to Rule 37(e) has drawn the most attention. This proposed amendment seeks to impose a uniform ruling on sanctions for the failure to preserve data. The imposition of sanctions by Federal Court has varied, from the per se gross negligence standard articulated in the landmark case of Zubelake to the factors test recently adopted by the 2nd Circuit in Chin v. Port Authority.

One of the most discussed topics at this year’s LegalTech in New York was about information governance and how to balance it with the duty to preserve. Opinions vary on just what needs to be preserved, and there was a general sense that corporations may actually be preserving too much data. These proposed rules would provide much clarity to in-house and outside counsel when determining just what and how much data needs to be kept.