Analysis of Potential Rules Governing Electronic Discovery

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On September 9, 2011, The Civil Rules Advisory Committee of the U.S. Judicial Conference met in Dallas to discuss changing the Federal Rules of Civil Procedure related to electronic discovery, preservation of electronic evidence and sanctions related to electronic discovery.

As a member of the Sedona Conference® Working Group on Electronic Document Retention and Production, we were afforded the opportunity to make comments to the Rules Committee prior to the conference. We were happy to do so, but we are ambivalent as to whether the rules as considered should be amended.

The Rules Committee is considering three different amendment approaches. One approach is to create a specific rule that would provide detailed explanations of the duty to preserve electronic evidence, the scope of the duty to preserve, triggering events, and sanctions. The second approach is a general preservation rule. The third approach solely addresses sanctions as a way of influencing litigant and counsel behavior. The sanctions based rule would not provide specific guidance about preservation.

This article contains an analysis of the three approaches.

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