Connecticut rings in the new year with new rules, joining the pack of some 30 states now basing e-discovery rules in whole or in part on the 2006 Amendments. Florida and Massachusetts are considering new rules and the District of Columbia is awaiting approval of pending proposed rules. Also, Oregon has some minor amendments going into effect this year and Pennsylvania has some proportionality concepts brewing. A dozen states remain without action.
Tom Allman, a leading state e-discovery expert, joined the year-end Fios webcast and presented updates on state e-discovery activity. He discussed the impact of the 2006 Amendments to the Federal Rules of Civil Procedure on key e-discovery issues and the future of rulemaking. He also touched on highlights from his recent paper, which examines current state-level developments in detail. The paper includes an Appendix which provides a state-by-state summary of e-discovery rulemaking activity, with links to rules and law review articles. Download Tom’s paper here.
If you missed the live presentation, you can download the recorded session here to learn about key e-discovery issues of particular relevance to the states, ranging from case management and cost allocation to spoliation sanctions and preservation. Tom also pointed out how some states are acting in the absence of clear guidance, noting, for example, that no federal or state rules currently address preservation.
States rely on multiple resources, but continue to look to federal rules for guidance as their rulemaking evolves. The duty to preserve and the consequences for failure remain gray areas at both the federal level and state. This is problematic, and some improvements to the federal rules may be forthcoming this year.
Back in 2010, at the Duke Conference on Civil Litigation, Tom was on a panel with Judge Scheindlin and Judge Facciola, among others, which concluded that preservation and spoliation rules are too confusing, vary too much around the country and need some attention. The Rules Committee agreed and held a conference in Dallas in September 2011. They will also hold a Rules Committee meeting in Ann Arbor in spring 2012. The Discovery Subcommittee has been asked to come up with proposed drafts of rules that will address this issue. Tom closed the webcast with a detailed sneak preview of what’s potentially on the table; here is a brief summary of the possible choices:
- Do nothing and give Rule 37(e) a chance to evolve; it’s only been five years since the rules have been updated and case law is still emerging.
- Take the “Hubbard/Owen approach” by saying the formal duty to preserve does not attach until a lawsuit actually commences.
- Develop a detailed preservation rule spelling out the exclusive circumstances under which the duty to preserve would be triggered and the sanction consequences attached to preservation failures.
- Focus on improving Rule 37(e) by tweaking or rewriting it to make it better.
Regardless of which approach is pursued, something needs to change.
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