Just like in the Beatles song, the long and winding road leading to Federal Rules of Civil Procedure (FRCP) amendments took another turn on April 10th and 11th when the Advisory Committee considered the proposed rules package at its meeting in Portland, Oregon. The rules package being considered at the Portland conference was the result of revisions on the original amendment proposals after an active public comment period that ran from August 2013 through February 2014. While the rules package contains several important amendments relating to ediscovery, the most controversial proposal relates to the “failure to preserve” section in Rule 37(e). This language was the most hotly contested area throughout the public comment period. As such, there was much anticipation surrounding the Advisory Committee’s Portland meeting.
Major Ediscovery Milestones in Portland
The Advisory Committee unanimously approved a draft of Rule 37(e)…but not the draft that was issued in late March (after the public comments). A shortened Rule 37(e) – limited to ESI only – was drafted during day one of the Portland meeting and unveiled to the Advisory Committee only minutes before meetings commenced on day two. The fluidity of the process is exhibited by the fact that no Committee Note accompanied the revised Rule 37(e). Instead, when the Advisory Committee unanimously adopted it, the motion included a provision that a Committee Note be drafted prior to submitting a package to the Committee on Rules of Practice and Procedure (the “Standing Committee”).
The Best Possible FRCP Amendments Tour Guide
A full draft of the entire rules package – including the new, shortened Rule 37(e) – can be found in Tom Allman’s latest version of his FRCP amendments treatise. Tom is a former general counsel, current adjunct law school professor, and foremost ediscovery rules guru, and with his permission, Kroll Ontrack has posted Tom’s paper for our blog readers’ edification.
The Next Stop on this Incredible Journey
On May 29th and 30th, the Standing Committee is scheduled to review the Advisory Committee’s recommendations, after which the proposals (if approved) will be submitted to the Judicial Conference and Supreme Court. The earliest that any FRCP amendments could go into effect is December 1, 2015 (assuming that Congress does nothing to intervene).
Buckle your seat belts, there are likely to be a few more twists and turns before we reach the door of new FRCP guidelines for ediscovery.