E-Discovery Update: Proposed Rule Changes Reflect Trend Toward "Reasonableness" In Preservation

The Judicial Conference Committee recently approved changes to Federal Rule of Civil Procedure 37(e) addressing preservation and sanctions and setting forth clearer and more reasonable preservation standards than those imposed by some courts in the past. See Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, Agenda E-19 (Sept. 2014). The proposed change awaits review by the United States Supreme Court and, if approved, will take effect on December 1, 2015 (absent action by Congress). The new language of Rule 37(e) applies only to electronically stored information (ESI) and provides the following:

1. Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: