Advisory Committee Approves Duke Package and Last-Minute Streamlined Rule 37(e)

At the Advisory Committee on Civil Rules' meeting last week in Portland, Oregon, the Committee voted to adopt the Duke Conference “package” of amendments, as well as a last minute revised and streamlined Rule 37(e). The Committee considered and approved for adoption the package of amendments as laid out in the Agenda Book for the meeting, which included proposed amendments that focus on achieving proportionality, early and active judicial case management, and cooperation. The approved proposed amendments reflect revisions that were made in response to the significant number of comments submitted during the public comment period, including the withdrawal of the presumptive limit proposals.

More surprising was the Advisory Committee's decision to delay the discussion and vote on Rule 37(e) until the second day of the meeting, during which the Discovery Subcommittee presented a new streamlined version of the Rule, which was finalized just the night before. Rule 37(e) addresses the failure to preserve electronically stored information and has been the source of much comment and debate, including additional comments submitted after the Agenda Book version was printed. In response, the Subcommittee presented a greatly simplified version, which maintains sections addressing curative measures and sanctions (albeit in revised form), but no longer includes the list of factors that were so controversial. Instead, the new rule simply references a party's failure to “take reasonable steps.” The Committee voted to adopt the last minute revisions to the Rule, along with forthcoming amendments to the advisory note.

Click here for more on the Advisory Committee's meeting from Bloomberg BNA, as well as the full text of the newly revised Rule 37(e).