Should the Federal Rules of Civil Procedure be amended to better address issues relating to evidence preservation and sanctions in e-discovery?

Today in Dallas, at a “mini-conference” convened by the Discovery Subcommittee of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, participants are considering that very question. In a memorandum written in May, U.S. District Judge Mark R. Kravitz, chair of the Advisory Committee on Civil Rules, explained the purpose of today’s conference, describing the current state of affairs as “anxiety bordering on anguish”:

Discovery of electronically stored information commanded great attention at the Duke Conference. In this realm, anxiety bordering on anguish arises from uncertainty as to the beginning, scope, and duration of the duty to preserve and the concomitant risk of sanctions for spoliation. The panel chaired by Gregory Joseph proposed a thoughtful list of elements to be captured in a civil rule addressing these problems. The task of translating these elements into a workable rule is formidable, perhaps impossible. But the problems are so important that it is necessary to do everything possible to explore possible solutions. The Committee and more particularly the Discovery Subcommittee began work immediately after the Conference.

Three rough sketches of possible approaches were prepared by the Discovery Subcommittee and considered by the Committee at the April meeting. The first seeks to provide specific guidance, defining preservation obligations in considerable detail. The second is similar in outline, but substitutes general obligations of reasonable behavior for detailed directions. The third focuses on sanctions, relying on backward inference to shape preservation obligations. Each sketch is designed to provoke discussion in the expectation that much more work likely will be required before the Committee can decide whether to recommend publication of a proposed rule. The Advisory Committee has approved the suggestion of the Subcommittee that a miniconference be held to pursue the work further. The conference will gather lawyers with perspectives on all sides of a variety of litigation categories, including staff attorneys in private and government organizations. It also will include technology experts in search of current information about the most efficient methods of preserving, searching, and utilizing electronically stored information. It will be held on September 9, a date chosen to enable the Subcommittee to develop new models for consideration at the November Committee meeting.

In addition to the members of the Discovery Subcommittee, others invited to participate in today’s conference include Thomas Allman, retired GC, BASF Corp.; Jason Baron, National Archives and Records Administration; Theresa H. Beaumont, Google; William P. Butterfield, Hausfeld LLP; Bart Cohen, Berger Montague; Gordon V. Cormack, professor, University of Waterloo; M. James Daley, Daley & Fey LLP; Alex Dimitrief, General Electric Co.; Andrew Drake, Nationwide Insurance; U.S. Magistrate Judge John M. Facciola; Yvonne Flaherty, Lockridge Grindal Nauen, PLLP; Maura Grossman, Wachtell, Lipton, Rosen & Katz; Gregory Joseph, Law Offices of Gregory Joseph; Robert Levy, ExxonMobil; Hon. Nan Nolan; Robert Owen, Sutherland, Asbill & Brennan; Ashish Prasad, Discovery Services LLC; John K. Rabiej, The Sedona Conference; John Rosenthal, Winston & Strawn; U.S. District Judge Shira Scheindlin; Donald Slavik, Robinson, Calcagnie & Robinson; Allison C. Stanton, U.S. Department of Justice; Ariana Tadler, Milberg; Mark Tamburri, University of Pittsburgh Medical Center; and Kenneth J. Withers, The Sedona Conference.

One of the documents the attendees were provided in advance of the conference was a research memorandum prepared by Andrea Kuperman, then rules law clerk to U.S. District Judge Lee Rosenthal, chair of the Standing Committee on Rules of Practice and Procedure. Recently, Texas Lawyer published an interview with Ms. Kuperman about her research.

If today’s conference ends up recommending changes to the FRCP, the recommendations will be considered in November by the Advisory Committee on Civil Rules. Depending on what the Advisory Committee decides, that could be the start of a multi-stage process that could eventually result in formal changes to the rules.

For an in-depth discussion of the issues pertaining to preservation and sanctions, see the May memorandum by Judge Kravitz (starting at page 25 of the memorandum).