On Sept. 9, the Civil Rules Advisory Committee of the U.S. Judicial Conference will meet in Dallas to consider changing the Federal Rules of Civil Procedure on evidence preservation and sanctions related to electronic discovery. As part of the discussion, the committee — made up of judges, law professors and attorneys — will consider an exhaustive report prepared by Andrea Kuperman, chief counsel to the rules committee. For the report, the committee asked Kuperman — who previously served as the rules law clerk for U.S. District Judge Lee Rosenthal of the Southern District of Texas in Houston — to look at existing case law on evidence preservation and sanctions issues. If the committee approves the rule changes, there is a six-month comment period. Texas Lawyer senior reporter John Council emailed Kuperman some questions about the report. Her answers are below, edited for length and style.
Texas Lawyer: In your research, what was the consensus in case law on when the duty to preserve is triggered?
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