In November 2012, the Judicial Conference of the U.S. Advisory Committee on Civil Rules proposed that Rule 37(e) be gutted and replaced with one that allows a court to sanction a producing party for failure to preserve "discoverable information that reasonably should" have been "preserved in the anticipation or conduct of litigation" only when the requesting party can show that the failure was "willful or in bad faith" and caused the requesting party "substantial prejudice," or that such failure "irreparably deprived" the requesting party "of any meaningful opportunity to present a claim or defense."
The proposed amendment, scheduled to take effect in June, would make it far more difficult for requesting parties to obtain sanctions for failure to preserve, as present case law allows for the imposition of sanctions when the failure to preserve is the result of gross negligence and, according to at least one court, "mere" negligence, in addition to willful conduct, and the requesting party need not show any "substantial prejudice" or irreparable harm. In this month’s column, we will explore the wisdom of the proposed rule change.
Problems the Rule Change Seeks to Fix
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