Proposed Amendments to FRCP 1, 4, 16, 26, 30, 31, 33, 34, 37 and 55 were approved by the U.S. Supreme Court on April 29, 2015 and submitted to Congress. Absent some contrary action by Congress, the amended FRCP will become effective December 1, 2015.
The Amendments will have a significant impact on the discovery process. As ILS has previously blogged about, plaintiffs’ attorneys raised challenges to the original proposed changes to Rule 37(e), which would have placed a heavy burden on a party seeking discovery sanctions to prove bad faith. In response to the objections raised, the Discovery Subcommittee completely rewrote the proposed new rule. The text approved by the U.S. Supreme Court and currently before Congress reads:
(e) 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:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.