Comments prompt more changes to FRCP.

PositionE-DISCOVERY - Federal Rules of Civil Procedure - Rules for electronic discovery

The Committee on Rules and Practice and Procedure (the Standing Committee) has approved the changes to the Federal Rules of Civil Procedure (FRCP) proposed by the Advisory Committee on Civil Rules (Rules Committee).

The Rules Committee approved the proposed changes to FRCP during a public hearing in April. According to Bloomberg BNA's report on the meeting, the final changes were heavily influenced by the public hearings and more than 2,000 written comments it received regarding proposed changes to the rules governing electronic discovery.

One of the sections that drew the most fire was 37(e), which concerns the failure to preserve electronically stored information (ESI). Rules Committee member Judge Paul Grimm, of the District of Maryland, said commenters raised serious questions about whether the framework and approach of Rule 37 adequately addressed issues of duty to preserve and remedial and punitive measures. According to U.S. Judge David Campbell, chairman of the Rules Committee, the new phrasing is intended to reject the concept of strict liability because the most you can ask of people is reasonable conduct.

Members of the Standing Committee closely scrutinized this section, according to Law Technology News (LTN), because the proposed changes differed so much from the original proposal. Campbell led the in-depth discussion, which included fielding several difficult hypothetical situations testing the application of the rule.

Another area of controversy was Rule 26, dealing with proportionality and discovery scope. After extensive discussion, the Rules Committee amended the rule to require that discovery be proportional to the needs of the case. Specifically, "Unless...

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