The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we review: Preservation

Preservation is being added to both Rule 16 and 26 as a topic for meet and confers and scheduling orders. But with respect to the duty to preserve, it is the “new and (hopefully) improved” Rule 37(e) that holds a special place in the hearts of those practitioners who have been following its progression. Rule 37(e) as it existed from 2006 through 2015 provided for a limited safe harbor associated with the systematic loss of ESI[1] instead of imposing sanctions. However, determining what behaviors removed parties from that safe harbor became a court-by-court analysis that ran the gamut from negligence to recklessness to outright willfulness. The modified (and streamlined) Rule 37(e) has attempted to simplify that inquiry and is intended to require that, before a court determines sanctions, it is not considering the range of behavior described above. Instead, the court will examine simply whether the “loss involves ESI that ‘should have been preserved’ because the party failed to take ‘reasonable steps’ to prevent the loss of relevant ESI once the duty to preserve [is] triggered.”[2] Subsequently, if the court finds that a party failed to take reasonable steps and there is no alternative replacement evidence, then—and only then—will the court examine whether curative or other sanctions will be awarded under 37(e).[3] This underscores the importance of the required reasonable steps, as well as what it means for organizations to preserve and/or search for alternative evidence in the face of accidental deletion of ESI and other evidence. Both are examined more fully below. Continue Reading