The news is out, opinions are divided, and the line has been drawn in the sand. In yet another attempt to reduce the costs and delays in litigation caused by the increasing flood of electronic data in discovery, the Judicial Conference Advisory Committee on Civil Rules has proposed a new set of amendments to the Federal Rules of Civil Procedure. Released for public comment last month, the draft amendments are already generating a fair amount of controversy.
To date, most of the debate on the proposed changes has focused on the draft amendment to Rule 37(e). That amendment would raise the standard of culpability required to impose sanctions for any failure to preserve relevant information. Such attention is understandable given the potential far-reaching impact on organizations' defensible deletion efforts. Nevertheless, the importance that the committee has placed on emphasizing proportionality standards in the proposed amendments is just as noteworthy. Indeed, the proposed amendment to Rule 26(b)(1) puts proportionality at the start of the analysis, highlighting this "highly valued" yet "missing in action" doctrine. Judicial Conference of the United States, Report of the Advisory Committee on Civil Rules (Aug. 15, 2013).
